NHS Waiting Lists

Earl Howe: asked Her Majesty's Government:
	What change there has been since March 1997 in the number of in-patients waiting more than 12 months for treatment in the National Health Service.

Lord Hunt of Kings Heath: My Lords, the number of in-patients waiting over 12 months peaked in June 1998 and has now been reduced by over one-third since that date. At the end of September 2001, the number of patients waiting over 12 months was 44,700; that is 13,000 fewer than for the same period in 1997 and 13,600 higher than in March 1997.

Earl Howe: My Lords, I thank the Minister for that reply. Should not the Government be absolutely candid about the extent of the deterioration that has occurred in waiting times over the past four years? Can the Minister confirm that, in addition to those waiting over one year to receive treatment in hospital, the number of people waiting longer than 13 weeks even to see a consultant—the so-called Xwaiting list for the waiting list"—stands at some 400,000, which is a 60 per cent increase on when the Government first took office? Do the Government recognise that that represents a very substantial pent-up demand for secondary care? How can the limited measures announced so far make any appreciable inroads into the increasingly widespread distress experienced by patients?

Lord Hunt of Kings Heath: My Lords, as regards out-patient waiting lists, the noble Earl is right in relation to the figures for waits lasting over 13 weeks. However, he has ignored the fact that, for 26-week waits, the figure has come down from 113,000 to 93,000. As they have with regard to in-patient waiting times, the Government have taken a number of steps to improve the position on out-patient waits. Targets have been set for the NHS over the next three years to bring those figures down. It is also worth noting that in regard to general in-patient waiting figures, the number of patients treated by the NHS over the past four years has gone up, while since the 1998 waiting time peak, the figures have consistently come down. Furthermore, an announcement was made earlier today by my right honourable friend in another place concerning the patient choice programme which will, I believe, have a dramatic effect not only on waiting times but also on the ability of patients to exercise choice.

Lord Clement-Jones: My Lords, contrary to what the Minister has just said, the department is slipping backwards in certain areas such as accident and emergency services, as demonstrated by the recent Audit Commission report. Nevertheless, the Government remain obsessed with structures. Only recently Mr Adair Turner has been commissioned to produce another report on the structure of the NHS. Is it not time that the Government stopped tinkering with the structure of the NHS and allowed health service staff to get on with the job?

Lord Hunt of Kings Heath: My Lords, that is exactly what we are doing with the changes that are being introduced. The balance of decision making is being shifted to the local level. We shall announce shortly the names and numbers of strategic health authorities that will be established. Those authorities will not be commissioning organisations, as is the case with the present health authorities. By 2004, some three-quarters of the NHS budget will be handled at the primary care level, where surely it should be.
	As regards A&E services, the Government responded to the Audit Commission report by ensuring that in the future, patients will be streamed between urgent and non-urgent cases in A&E departments. That will mean that non-urgent cases will be seen according to arrangements laid down, and they will not be affected when sudden emergencies come into the departments. As specialist practitioner nurses are brought into use, we will see distinct improvements in A&E service provision.

Viscount Waverley: My Lords, perhaps I may remind the Minister of representations made by the Sheffield NHS Trust to bring in Chinese nurses to help to fill its staffing void. What is the Government's policy on NHS trusts being permitted to conduct their affairs without having to wait for government guidelines?

Lord Hunt of Kings Heath: My Lords, we are anxious to conclude discussions with the Chinese authorities and we are working with a number of trusts in this country to enable nurses from China to come to work in the NHS. So far as concerns the Sheffield NHS Trust, I was glad to meet with representatives from the trust through the noble Viscount. I have arranged for officials from the department to have further talks with those representatives. Obviously I am anxious to ensure that the trust can take advantage of its initiative as much as possible.

Lord Elton: My Lords, was the noble Lord able to hear the Radio 4 XToday" programme report at 8.20 this morning when it was announced that anyone who had been waiting for longer than six months for an operation could choose in which hospital they wished to have their operation, whether or not the hospital was in the National Health Service? Furthermore, if the noble Lord heard the programme, was he not as surprised as I was to hear Mr Alan Milburn answering questions about the new policy on the air before he could respond to questions about it in the House of Commons?

Lord Hunt of Kings Heath: My Lords, I think that my right honourable friend was giving brief details, while the full details were announced in his Statement made in another place. I regret that the Opposition parties decided not to accept a similar Statement in your Lordships' House this afternoon.

Baroness Noakes: My Lords, while it is greatly to be appreciated that in-patient waiting lists are showing a marginal improvement, does the Minister agree that mean waiting times vary between regions and that, in particular, they have deteriorated in the South of England? Does this mean that the Government are introducing postcode waiting?

Lord Hunt of Kings Heath: My Lords, of course we are not introducing postcode waiting. Clearly, circumstances differ throughout the National Health Service, but that has always been a feature. We need to ensure that progress is made in all regions. As announced in the Statement made by my right honourable friend today about NHS allocations to health authorities, we are providing resources and the capability to enable the NHS to effect improvements in the waiting time position.

Lord Rotherwick: My Lords, it used to be possible to see a doctor within a couple of hours when one went into an accident and emergency department as an accident case. In my experience most recently—

Noble Lords: Question!

Lord Rotherwick: My Lords, I was coming to that, but thank you for reminding me. In my recent experience you may have to wait for up to seven or nine hours to see a doctor.

Noble Lords: Question!

Lord Rotherwick: My Lords, it is coming. Patience. What are the Government going to do to reverse this trend?

Lord Hunt of Kings Heath: My Lords, the question was well worth waiting for. The Audit Commission report on A&E waiting times, to which the noble Lord, Lord Clement-Jones, referred, identified some of the problems in A&E. It is inescapable that there has been a huge increase in the number of people using A&E departments. The first aim is to ensure that only people who need to come to A&E do so. We need to work with primary care to improve out-of-hours facilities in primary care, and to use NHS Direct as far as possible. As far as concerns A&E services, the streaming of urgent and non-urgent patients is the right answer. Nurse practitioners can provide an excellent service to non-urgent patients, which will allow doctors to focus on people who really need to be seen by doctors.

Baroness Strange: My Lords, is the Minister aware that on Tuesday, when I went into the Lambeth accident and emergency department in St Thomas's, I saw an excellent nurse practitioner within an hour. Her name was Anne—she would not tell me the rest of her name—and she was very good indeed. I was taken there by the very kind sister in this House, for which I am very grateful. Is the Minister aware of that?

Lord Hunt of Kings Heath: My Lords, I was not aware, but I am very glad to be aware now.

Laska Jihad

Baroness Cox: asked Her Majesty's Government:
	What support they are able to offer the Indonesian Government in responding to the activities of Laska Jihad in Maluku and Sulawesi.

Baroness Symons of Vernham Dean: My Lords, Laska Jihad is one of several extremist groups perpetrating a cycle of violence between Christians and Muslims in Maluku and Sulawesi. Her Majesty's Government deplore the resultant loss of life and, together with EU partners, have strongly urged the Indonesian Government to reduce the level of violence and promote reconciliation. We are also considering ways to offer practical help within the context of our conflict reduction strategy, and have funded conflict-reporting workshops for journalists in both provinces.

Baroness Cox: My Lords, I thank the Minister for that helpful Answer. Is she aware that the conflict, in which both Christians and Muslims have attacked each other, has recently escalated drastically with the influx of Jihad warriors? For example, when I flew into Ambon, there were seven foreign Jihad warriors on the plane. Their leader now claims that there are more than 7,000 in Sulawesi, where they are attacking Christian communities. Many have been killed, tens of thousands have been displaced and there are threats of a bloody Christmas. Will Her Majesty's Government therefore take the kinds of measures outlined by the Minister to support President Megawati, who is committed to religious tolerance, and do so as a matter of enormous urgency to avoid that bloodshed this Christmas?

Baroness Symons of Vernham Dean: My Lords, I am aware of the escalation of the conflict. I thank the noble Baroness for the valuable work she has done in keeping in contact with the Foreign Office. I know that she had a valuable round-table session on this issue with my colleagues in the Foreign Office at the end of November. On 4th December, together with our EU partners, through our ambassador in Jakarta, we made representations about these issues. There are conflicts about the numbers of people who are believed to be involved in this activity. The UN has stated that it is not 7,000 but only 1,000. The noble Baroness can rest assured that the issue is being taken very seriously. Representations are being made—bilaterally, through the EU and, of course, through the United Nations.

Lord Archer of Sandwell: My Lords, can my noble friend assist the House in two respects? First, is it the Government's view that the Indonesian Government are unable to control the situation and restore order, or is there a lack of will? Secondly, does the violence come entirely from the Laska Jihad and the other extremist groups, or have they persuaded the local Muslim population to support them? Would any purpose be served in inviting distinguished leaders, both Muslims and Christians, on an international basis, to appeal for peace and tolerance?

Baroness Symons of Vernham Dean: My Lords, I do not think that the Indonesians can be accused of being either unable or unwilling to do something about the situation in both provinces. I remind your Lordships that the Indonesian Government have sent five battalions to the northern Moluccas, 10 battalions to the southern Moluccas, and, very recently, two battalions to Sulawesi. Indeed, the Minister for Political and Security Affairs visited Sulawesi yesterday. That indicates that the Indonesian Government are taking the matter seriously.
	We must remember that it is always difficult to assess exactly who is involved in violence. Undoubtedly the Jihad movement has involved itself in a good deal of violent behaviour, but I stress that the United Nations has reported that some local Christian groups have also been indulging in violence recently. One must be very careful about laying the blame entirely on one side or the other. The picture is more complicated than that.

Lord Avebury: My Lords, is the Minister aware that the organisation in question has admitted that Osama bin Laden offered it arms and money some five or six years ago, and that the leader of the organisation personally met Osama bin Laden in Peshawar in 1997? Further to the noble Baroness's previous answer, does she believe that the additional 50 battalions, which the Indonesian Minister said he was deploying to trouble spots, is likely to cure this or other conflicts, bearing in mind the record of the Indonesian military in the past? Does the noble Baroness not think that it would be more helpful if we offered the Indonesian Government advice on legislation to combat racial and religious hatred, which they might introduce with profit in their country?

Baroness Symons of Vernham Dean: My Lords, I am aware of allegations about the links to which the noble Lord refers. Reports vary as to the number of Islamic extremists in the region and their international connections. A number of reports have speculated on the presence of international Islamic militants. I agree with the noble Lord that that is a serious position if it is proved to be the case.
	The additional battalions are of help, but they do not solve the issue in itself. That is why I was careful in my initial Answer to the noble Baroness, Lady Cox, to stress what we are trying to do through conflict prevention. We are using the global conflict prevention pool—the pool of money across Whitehall to be deployed on such issues. We are also deploying DfID funds to the tune of some #33 million in poverty reduction programmes over the next three years. I hope that the programmes will make a useful contribution in helping to resolve some of these appalling conflicts.

Lord Hylton: My Lords, will the Government ask the Indonesian authorities to lift the siege of the town of Tentena, where there are many displaced people? Does the Minister consider that it would be helpful to have in place, on a long-term basis, international observers and human rights monitors?

Baroness Symons of Vernham Dean: My Lords, we have made a number of representations to the Government of Indonesia. The most recent, on 4th December, was made by the EU heads of mission in Jakarta. The agreed terms of reference were for a confidential EU troika demarche to the Indonesian Government on a number of issues. I hope the noble Lord will also be pleased to know that the EU has offered constructive technical and financial assistance in the framework for a long-term approach in an attempt to help to solve some of the underlying problems in the region.

Baroness Park of Monmouth: My Lords, has the EU's developing relationship with ASEAN been effectively used? There seems little doubt that the influence on a basically moderate government would be likely to be greater if it came from countries in the area, many of which are also Muslim, particularly as—we know this from past experience—the Indonesian forces are not known for their commitment to the protection of the weak and the helpless.

Baroness Symons of Vernham Dean: My Lords, the more interchanges there are between the Government of Indonesia and the EU, the more constructive those exchanges can be. If they are able to aid the economic recovery of Indonesia, that is very much to be applauded. We all know that the economy of Indonesia has been in great difficulty. The country still faces tremendous social challenges arising from that fact. It is important that those interchanges continue and that further efforts are made. The noble Baroness may know about the renewed IMF agreement and the Paris Club settlement. All of these are important building blocks in putting together structural reform for the future and in ensuring that we do what we can to help to stabilise the very difficult situation in Indonesia.

House of Lords Reform

Lord Selsdon: asked Her Majesty's Government:
	In the context of their proposals for House of Lords reform, what mathematical model they have applied or what actuarial research they have conducted to ensure that the total membership of the House can be capped at 600 in 10 years' time without any diminution in the existing number of life Peers.

Lord Williams of Mostyn: My Lords, the Government Actuary's Department estimated that, on average, 17 to 18 life Peers could be expected to die each year in the first decade of this century.

Noble Lords: Oh! Shame!

Lord Williams of Mostyn: My Lords, the House currently has 704 Members. The net gain in numbers from the removal of the remaining hereditary Peers and the entry of 120 elected Members is 28. Taking account of those figures, the estimated mortality rate means that the Government can justify the statement in paragraph 91 of the White Paper; namely, the proposal for a cap of 600.

Lord Selsdon: My Lords, I am most grateful to the noble and learned—and ever-youthful—Lord the Leader of the House. But is he aware that government statistics can be wrong—as noble Lords have proven from time to time? Is he further aware that Members of this House, more than any other minority group in the country and possibly in the world, have a propensity for long life because of the active use of their minds? By my calculations, up 100 Members may be forced to be removed if the Government seek to achieve that objective. Will the noble and learned Lord give an undertaking that under no circumstances will the Government seek to remove any life Peer?

Lord Williams of Mostyn: My Lords, your Lordships certainly have a propensity for long life—and long speeches—but, as my noble friend reminds me, not yet a propensity for immortality. We have made it plain in the White Paper that present life Peers are in no danger of compulsory exclusion. Equally, the question has been raised of a voluntary retirement age, and possibly a retirement resettlement package.

Lord Renton: My Lords—

Noble Lords: Hear, hear!

Lord Renton: My Lords, having helped Lord Butler of Saffron Walden, when he was Home Secretary in 1958, to pilot the Life Peerages Act through another place, perhaps I may assure the noble and learned Lord the Leader of the House that life Peers are living longer and longer; and that the more expertise that can be kept in and attracted to this House, rather than XLobby fodder" by the creation of life Peers, the more will the public interest be served.

Lord Williams of Mostyn: My Lords, the noble Lord is himself a life Peer. He has never been regarded as Lobby fodder on any occasion, by anyone. The tables indicate—unless I am about to be corrected; I hope that the noble Lord whose mobile phone is ringing will say: XI am on the train"!

Lord Oakeshott of Seagrove Bay: My Lords, I hope that I am old enough to be able to ask this question. It is relevant to the total numbers given. Will the Minister explain why the analysis on page 31 of the White Paper of the so-called imbalance in party strengths, includes the remaining hereditary Peers? As the hereditaries will not sit in the reformed House, only the number of life Peers matters for that calculation. Will the Minister place in the Library a corrected version of page 31, indicating the proportion of life Peers for each of the three major parties as compared with votes cast at the last general election—which is the proper basis for discussing the future composition of this House?

Lord Williams of Mostyn: My Lords, there is no inaccuracy in paragraph 31. It sets out the present facts. There will be a period of time between the beginning of our discussion on second stage reform and Royal Assent when the presence of a significant number of hereditaries has a connection to party strengths. But the simple arithmetical calculation is an easy one, and I am perfectly happy to accept the noble Lord's suggestion.

Baroness O'Cathain: My Lords, the figures given by the Minister suggest a net difference of 28. He referred to 704 being the current strength of the House; 92 hereditaries will go; and 120 Peers will be elected—bringing the figure to 732. But he made no reference to Xpeople's Peers". Does that mean that the commission will be redundant, and that the only method of entering this House will be by election?

Lord Williams of Mostyn: No, my Lords. The indication of the Government's thinking given in the White Paper is that there should be a new independent statutory commission. Its remit, over a 10-year period, will be to work to the 600 cap. Plainly there will be a lengthy transition period when the commission will have to work towards that cap. I do not believe that it is unattainable, particularly as the background papers in the Printed Paper Office show that some Members of your Lordships' House do not attend very regularly and might be quite pleased to take a permanent leave of absence.

Lord Lester of Herne Hill: My Lords, why do the Government believe that 600 is the necessary limit for an effective upper House? Would it not be possible to reduce that figure by 20 or 30 per cent and still retain the same quality?

Lord Williams of Mostyn: My Lords, if the noble Lord can specify for my noble and learned friend the Lord Chancellor and me where that 20 or 30 per cent might come from, we should both be extremely pleased. Not every Member of this House devotes all of his or her time to parliamentary business. Many would say—and I would be among them—that that is one of the strengths of this House. If the House were significantly smaller, not all of the range of expertise would be available and I think that Parliament—and therefore the country—would suffer.

Foot and Mouth: Assistance to Rural Businesses

The Earl of Onslow: My Lords, as a hereditary Peer, may I make hay while the sun shines and ask the Question standing in my name on the Order Paper?
	The Question was as follows:
	To ask Her Majesty's Government whether their commitment to treat rural businesses affected by foot and mouth disease sympathetically in tax terms is being acted upon adequately.

Lord McIntosh of Haringey: Yes, my Lords, but do not just take my word for it. The Rural Task Force and the noble Lord, Lord Haskins, have both acknowledged the positive and sympathetic approach taken by the revenue departments and reported widespread praise for the way in which they have responded. They have now helped more than 22,500 rural businesses, deferring tax, national insurance contributions and VAT liabilities of more than #190 million. No interest will be payable by the businesses concerned for the period of deferral. The revenue departments are well aware that for some the financial difficulties are not over and they are continuing with the programme.

The Earl of Onslow: My Lords, I thank the Minister for that quite helpful reply. Is he aware that that is not necessarily the view in the countryside, as expressed by the director of the North West Tourist Board? Does not that add to the general confusion of the whole ghastly saga of foot and mouth and make it even more necessary to have a proper full public inquiry rather than bits and pieces, odds and ends and bits and bobs?

Lord McIntosh of Haringey: My Lords, I have read the article in the Sunday Telegraph to which the noble Earl alludes and I have read about the case of a director of the North West Tourist Board. We do not comment on individual cases, but we are making inquiries about those allegations. Our understanding is that the views are those of only a small minority of those who are being satisfactorily helped by the programme. That is the remit of this Question.

Lord Harrison: My Lords, I declare an interest as a former deputy chairman of the North West Tourist Board. Does my noble friend recognise that many rural businesses are small firms, often in the hospitality and tourism industries? What more can be done to help them? Does he believe that they are being treated equally in all respects to those in the agricultural sector?

Lord McIntosh of Haringey: My Lords, I responded to the Question, which was about tax. There is also the Business Recovery Fund, which has provided #74 million in grants through the regional development agencies. There is also the provision of mandatory rate relief, which we are greatly encouraging in rural areas. All those are contributing to the deserving small businesses in rural areas to which the Question refers.

Baroness Miller of Chilthorne Domer: My Lords, does the Minister understand the comments from the UK Competitiveness Index that the rural development agencies are spending too much time on institutional change rather than on the issues in the countryside? Does he agree that they should be pulling together the sort of comprehensive package for small rural businesses that has been developed region by region for farmers whose stock has been culled? Copies are in the Select Committee minutes of the other place. There has been no such package for small businesses.

Lord McIntosh of Haringey: My Lords, I assume that the noble Baroness is talking about regional development agencies rather than rural development agencies. That is the context in which I was referring to the Business Recovery Fund. Clearly there are many tens of thousands or hundreds of thousands of rural businesses, not all of which are in the same plight. We must remember that at one time 140,000 premises had restrictions, whereas now there are only 1,472. The situation is substantially better than it was.

Baroness Sharples: My Lords, the Minister referred to 20,000 rural businesses being helped by the taxation provisions. Can he tell us the total number of rural businesses that have been affected by foot and mouth?

Lord McIntosh of Haringey: No, my Lords. The definition of Xrural" is not entirely precise. The 22,500 businesses to which I referred are those that came to the revenue departments and asked for help. There is no way of telling from what pool they came.

The Lord Bishop of Hereford: My Lords, can the Minister give us assurances about clear and consistent criteria that apply to grants from regional development agencies across the country? In particular, are there significant differences from one region to another? Do some RDAs give grants to individual businesses while others do so only for businesses that are committed to working in some new and co-operative way? There are signs of some unease that the criteria are not clear and the grants are not being given consistently across the country.

Lord McIntosh of Haringey: My Lords, this is always a difficult issue. The rules are published and are available from local offices and on websites. The scope for poor treatment in certain areas is limited. At the same time, regional development agencies have to have some flexibility when allocating funds. It is not my understanding that flexibility is being applied in an unjust way.

Anti-terrorism, Crime and Security Bill

Report received.
	Clause 17 [Extension of existing disclosure powers]:

Lord Phillips of Sudbury: moved Amendment No. 1:
	Page 7, line 7, after Xauthority" insert Xto a relevant public authority,"

Lord Phillips of Sudbury: My Lords, this group of amendments deals with our core objection to the Bill as it stands. Given that not all noble Lords will have sat through the debates so far, I hope that the House will think it useful if I briefly explain the context for the amendments. The issue is whether the extensive powers reserved by the state should be confined to threats to national security. It is all about reconciling our duty to safeguard our traditional civil liberties with our duty to forestall as best we can any emergency threats to our national security.
	Striking the right balance between those duties is an exercise in art, not science; prediction, not measurement. If laws alone could inoculate the body politic against extreme violence, there would be no argument on the amendments. However, as we know only too well from recent history, reaction to authoritarian legislation can beget the very thing that it is designed to prevent. Just as the bodily rejection of inappropriate medication can be worse than the complaint, so it can be with such legislation.
	It is counter-intuitive to believe that civil liberties are best preserved by suspending them. That tends to be a poor way of winning the battle for hearts and minds, here or abroad, without which no long-term national security is possible, particularly post-September 11th.
	What does Clause 17 allow? As its title says, it extends existing disclosure powers in the 66 statutes listed in Schedule 4. Each of those statutes was carefully considered and contains differing and often highly detailed regimes of required confidentiality and permitted disclosure. The core of our disagreement with Clause 17, and the other clauses to which this group relates—Clause 19 and in particular Clauses 103 and 104—is that this widespread extension of existing disclosure is not confined to the protection of national security or to the fight against terrorism.
	It is instructive briefly to look at the precise effect of Clause 17 in relation to the 66 scheduled statutes, as that has not been done so far. For example, the Companies Act 1989 provides a strict regime of confidentiality, to which Section 87, as mentioned in Schedule 4, will be excepted. However, the exceptions in the Bill as drafted are strictly limited to enabling a relevant authority to discharge a relevant function, for example, the Treasury, if interests of investors or public interests are involved, and the police in respect of information needed in pursuance of European Union obligations. The only other exception in the Companies Act to breach of confidentiality is in respect of relevant proceedings, but not, I emphasise, investigation of those proceedings—I refer to paragraph (a) of Clause 17(2)—let alone for the purposes of initiating such investigations—I refer to paragraph (b)—and certainly not in respect of facilitating a decision as to whether or not to proceed to investigate as a prelude to any criminal proceedings—I refer to paragraph (d).
	Furthermore, Section 87 of the Companies Act gives a highly detailed description of what are relevant authorities and relevant functions by which to judge whether or not disclosure falls within the general rule of confidentiality, or rather within exceptions to the general rule of confidentiality.
	I refer briefly to the Health Act which is also specified. On considering that Act, one realises what an intricate and carefully balanced web of protections is provided which will, frankly, be blown apart if Clause 17 as drafted is approved. It provides a comparable framework to the Companies Act, so that there can be no disclosure for the purposes of criminal proceedings outside the United Kingdom, and disclosure for criminal offences within it is confined to serious arrestable offences. I need hardly say that nothing like that is included in Clause 17.
	As I am sure the House is aware, Clause 17 will override those restrictions. It is extraordinarily wide. First, any public authority here or abroad can request information from the commissions and bodies connected with the 66 statutes I mentioned. However, what some noble Lords may not appreciate is that Xpublic authorities" in this context are extremely widely defined and include private bodies and companies in so far as they have public functions such as running schools, prisons or railways here or abroad. Secondly, contrary to what the noble Lord, Lord McIntosh, first understood in debate, a request for disclosure from any of those public authorities at home or abroad can be refused only on good grounds or what are known to lawyers as Wednesbury principles; that is, such bodies are judicially reviewable if they refuse a request for disclosure. Thirdly, the scope is not confined to serious offences but extends to any offence whatever. Those can include private prosecutions. Moreover, the list of 66 statutes is not exhaustive and can be added to by statutory instrument. However, to be fair to the noble Lord, Lord Rooker, an amendment has been tabled to ensure that that at least is subject to affirmative procedure.
	Where requests are made by public authorities or individuals abroad there is no safeguard that the legal system, procedures or integrity of the relevant foreign jurisdiction are comparable to our own and provide comparable protection. Furthermore, the citizen does not have the safeguard that exists in the Regulation of Investigatory Powers Act which requires prior authorisation before any request for disclosure can be made.
	The Government say, and have said repeatedly, that none of those matters should be too worrisome due to the provisions of the Human Rights Act. However, in normal cases a citizen whose rights of confidentiality have been breached will never be aware of that. Even where he or she is aware of it, resort to Human Rights Act remedies is extremely uncertain and expensive. One can exercise those rights only in the course of proceedings and, what is more, the rights themselves are extremely generally framed. I put it to the House that few indeed will treat that as a real and effective protection against disclosure of confidential information.
	Above all—I have hinted at this—Clause 17 is not confined to disclosure in connection with prosecutions, public or private, or investigation of prosecutions, but extends to decisions as to whether to initiate an investigation and even to inquiries before that stage. These amendments endeavour to rectify some of those defects, particularly as regards the issue of scope.
	I believe that the unanimous view of this House is that the Government are fully entitled to endeavour to deal with unexpected and emergency threats of terrorism. We have endeavoured to define the scope of disclosure in a practical way that will give the police and other authorities the scope they need in order to do their work. Therefore, we have stipulated that whether disclosure is voluntary or is supplied on request it can be provided where the public authority Xbelieves or suspects" that the relevant information,
	Xmay relate directly or indirectly to any risk to national security or to a terrorist".
	The lowest hurdle, therefore, under the amendment to this and the other clauses in the group, is that there must be a suspicion that disclosure may indirectly relate to such a risk.
	I refer to the amendment that we tabled in Committee which would have subjected disclosure requests to prior authorisation. We still believe that that would aid the overall purpose of the statute in circumstances of potential threat. However, in discussions and in correspondence, the noble Lord, Lord McIntosh, was unconvinced of the need for that and we have bowed to that at this stage. However, I urge the Government to reconsider that matter in advance of next Tuesday's consideration of the Bill as we believe strongly that such a measure would aid and abet the swift disclosure of information by public authorities to which requests are made. I beg to move.

Baroness Buscombe: My Lords, in speaking to Amendment No. 1, I wish to speak also to Amendments Nos. 2, 5 and 10. My noble friend Lord Dixon-Smith will speak to Amendment No. 9 which relates to Part 10 and my noble friend Lord Northesk will speak to Amendments Nos. 10, 12, 15 and 19 which relate to Part 11.
	It is important at the outset to make it absolutely clear that while this overall grouping attaches to several parts of the Bill, we shall make the same point; that is, that whether it is a matter of extending powers of disclosure of information and retention of communications data involving investigatory authorities such as the National Criminal Intelligence Service, the National Crime Squad, the Commissioners of the Inland Revenue, the Commissioners of Customs and Excise or police powers, as expressed in Part 10, those increased powers should be used only by the authorities involved in counter-terrorism.
	It gives me pleasure to follow the noble Lord, Lord Phillips of Sudbury, as he and I have, on behalf of our parties, had numerous discussions in relation to Part 3. The noble Lord and I are at one on this issue. As the noble Lord said, we are concerned that this and, indeed, the other parts to which I referred, as currently drafted will inevitably lead to nothing short of excessive state interference in our rights of privacy and individual freedom. It is important, therefore, that this emergency Bill must not be used as a convenient vehicle, indeed, as an excuse, to legitimise fishing expeditions on the part of authorities under the guise of pursuing any criminal investigation.
	To extend the power of disclosure in criminal proceedings to disclosure for the purposes of any criminal investigations, however remote or minor, anywhere in the world in this emergency legislation is unacceptable. There is no doubt that these powers will become commonplace in any investigation simply to see what turns up. As a result, quite understandably people will become less inclined to assist public authorities. They will feel that their right to privacy has been revoked and they will be less frank. Is that what the police and intelligence services want? I think not. However, we argue that they would be much more likely to respond—indeed, I suggest, they would have no objection—if the information were genuinely intended for the purposes of counter-terrorism. It is as simple as that.
	We expressed those concerns both at Second Reading and, again, in Committee. Each time the Minister worked hard to assuage our fears, without success. We were then grateful for the opportunity of a further discussion with the Minister and officials, conscious of the Government's repeated chant: XWe are listening". At that meeting a compromise was suggested which both the Liberal Democrats and we believed could be acceptable. Perhaps I may say that the noble Lord, Lord McIntosh of Haringey, in the spirit of listening, agreed that it was worthy of further investigation.
	It was believed that that investigation would continue from the Monday until the Wednesday morning—that is, almost two days—if the key interested parties advising the Government of the need for this part to be drafted in such a way were to be consulted. In fact, the Minister wrote to the noble Lord, Lord Phillips of Sudbury, with a copy to me, that same afternoon, stating the reasons why our suggestion could not be carried. So much for consultation; so much for listening. The Government have shown by their actions thus far that they will not listen. Considering the true import of some parts of this draconian Bill, that is most regrettable.
	While we are determined to support the fight against terrorism, a fight against terrorism it must be and not, in the process, an unnecessary erosion of our right to privacy. The line must be drawn somewhere between terrorism and minor traffic offences. The Bill fails in that task. Following much thought and much discussion, we are certain that the task should be revisited, if at all, with great care another day in a separate Bill. That is why we believe that these amendments are so necessary.

Lord Lester of Herne Hill: My Lords, in effect these amendments give effect to the recommendations made unanimously by the Joint Committee on Human Rights, of which I am very proud to be a member. In our first report, we dealt in paragraphs 53 to 55 with our concerns and our objections in principle. We returned to the matter in paragraph 24 of our most recent report. We explained what we had said previously and then expressed our view that there remains a significant risk that disclosures will violate the right to respect for private life under Article 8 of the European convention. We consider that to be the case because of the range of offences covered, the lack of statutory criteria to guide decisions and the lack of procedural safeguards to be followed when deciding whether it is necessary and proportionate to make a disclosure of personal information. We published as an appendix to our report the important written evidence of the Information Commissioner to the committee in that regard. We explained that we endorse that evidence and commend it to the attention of each House.
	I had the benefit of listening to the noble Lord, Lord Rooker, on the XToday" programme this morning. It seemed to me that he was evincing open-mindedness on behalf of his department and the Government. I believe that I can speak for the whole Joint Committee in saying that we hope very much that these amendments, or something very similar to them, will commend themselves to remedy what would otherwise be a serious blemish in this legislation.

The Earl of Northesk: My Lords, it should come as no surprise to your Lordships that I support the thrust of all these amendments, particularly those relating to Parts 3 and 11. It may be helpful if, at the invitation of my noble friend Lady Buscombe, I add a few words about Amendments Nos. 10, 11, 12, 15 and 19, which are concerned with limiting the scope of Part 11.
	I need not detain your Lordships long. After all, it was only two days ago that we were in Committee on this part. None the less, I believe that it is worth repeating a question that I have asked consistently since we began scrutinising the Bill. The Minister has been studious in advising us that thus far communications data have been central to the investigation into the events of September 11th and that the assistance afforded by CSPs has been Xexcellent". All of us are delighted to hear that. However, if investigations have proceeded and are proceeding so successfully and without compromise under the existing law, what need do the Government have of such a broad scope of data retention powers on the face of the Bill?
	None of us disputes that law enforcement should have adequate powers to counter the threat of global terrorism. We all share that aspiration. But those powers should not overreach themselves unnecessarily. As our debates on this issue have demonstrated so visibly, there is widespread concern that that is precisely what the Bill does.
	Moreover, as I have argued consistently, there is a very real risk that the vast accumulations of data that the Bill currently envisages could prove counter-productive in terms of providing the type of focused intelligence that is required to combat terrorism. By making the powers too broad, the Bill could have the perverse effect of hampering our law enforcement agencies and intelligence services in their admirable work; nor should we underestimate how great a problem that would present in terms of data subjects' right of access to information about them under the Data Protection Act.
	I turn briefly to the amendments. I hope that your Lordships will understand that there has been something of a rush to convert from Committee to Report stages in less than two days. Therefore, I apologise for any confusion that may have arisen on the Marshalled List. Noble Lords will have observed that Amendments Nos. 10 and 12, taken together, are, as it were, sub-sets of Amendment No. 11. Be that as it may, their purpose is clear. For avoidance of doubt, I merely state that Amendment No. 11 is our preferred choice. Through it, we have sought to move towards the Government's position by retaining the generality of crime purpose on the face of the Bill but constraining it by referring it back for national security purposes.
	I turn to Amendment No. 15, which seeks to plug what appears to be a gap in the Bill. It seeks to ensure that, if it becomes necessary for the Secretary of State to impose a mandatory data retention scheme, that, too, will be subject to the same purposes as the voluntary scheme.
	Finally, I turn to Amendment No. 19, which seeks to ensure parity and consistency of the Bill's aims and purposes with the Regulation of Investigatory Powers Act. In sum, what is proposed for Part 11 is a package of linked amendments—Amendments Nos. 11, 15 and 19—as the means of properly limiting the scope of the proposed data retention provision without in any way undermining the capacity of law enforcement authorities and intelligence agencies to counter the threat from global terrorism.

Earl Ferrers: My Lords, perhaps I may be permitted to make an intervention. I have not done so yet in relation to this Bill; perhaps I may be permitted to do so now. As I understand the position, under the Bill the Government are permitting the police, investigating authorities and even courts to investigate people's financial affairs—that is, their bank balances, VAT records and all such other information. That may well be fine for the purposes of terrorism.
	I believe that we are all agreed that, where prospective terrorists are at large, such information should be made available to those who are investigating them. But, as my noble friend Lady Buscombe said, it is quite a different thing to permit that type of investigation to be carried out for civil offences, such as, as she suggested, motoring offences. I cannot believe that any government would want that to happen.
	I wonder whether, in his reply, the Minister could let us know whether it is the Government's intention that such investigations should take place into minor criminal matters or whether they are simply to be kept for terrorist occasions. If the latter, everyone will be with the Government. If the measures are allowed to extend to criminal matters of a minor nature, most people would be against.
	Supposing information is gathered and persons are found to be innocent of the offence they were thought to have committed, what will happen to that information? Will it remain on file to be used on other occasions?

Baroness Carnegy of Lour: My Lords, the noble Lord, Lord Phillips, made an interesting speech. I have not been close to this part of the Bill so far but now I understand the amendments better. The noble Lord said that the idea that one can best preserve civil liberties by suspending them was rather strange. Does the Minister agree?

Lord Dixon-Smith: My Lords, a common theme runs through this debate, and Part 10, which deals with the extension of police powers, follows precisely the same principles that we have been arguing against since the Bill came before the House.
	Whatever the logic, it is offensive that a Bill the House has been invited to argue in relation to a particular set of circumstances, as part of a specific emergency process, should seek to extend functions that are proper to that purpose to criminality at large. As I have said so often, crime is always with us.
	Clause 90(4) states that,
	XSubsections (3) to (5) shall not apply, but any relevant physical data or sample taken in pursuance of section 18 as applied by this paragraph may be retained but shall not be used by any person except for the purposes of a terrorist investigation"—
	which is absolutely fine—
	Xor for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution".
	We find it difficult to accept that extension, which goes beyond that required for the purposes of the legislation. We have tabled one amendment to Part 10, the effect of which is to confine use of the additional powers—which refer also to Northern Ireland and to Ministry of Defence and transport police where they are called in to aid normal police forces—to matters related to terrorism. That is a proper distinction to make. I hope that Amendment No. 1 and the amendments grouped with it will in due course be supported.

Lord Wallace of Saltaire: My Lords, as the noble Baroness, Lady Buscombe, remarked, this is not only an anti-terrorism Bill but a convenient vehicle for putting through a number of other measures. As to specialised forces, we would have much preferred separate legislation and now know that there is to be a police reform Bill. When it emerges, I trust that the relationship between specialised forces and Home Office police forces will be carefully examined. I increasingly sense that some historical anomalies need to be revisited.
	I thank the Ministry of Defence for arranging for a senior member of the MoD Police to brief several of us on changes in that force. He was highly persuasive and told us a great deal about recent improvements in training, links with civilian forces and accountability. We were advised that three members of the MoD Police Committee are not either members of the Armed Forces or civilian members of the Ministry of Defence. That is still a small minority. They represent the customers of the MoD police and such representation on a force that has extensive contact with the public in a delicate area of policing will also need revisiting. The main purpose of many specialised forces is the security of sensitive property but they also have a relationship with the public in areas that go well beyond terrorism.
	The first key limitation we seek in Part 10 is a restriction on its application to matters that are clearly concerned with terrorism, which is the purpose of Amendment No. 9. The second is a limitation on time—a sunset clause, to which I hope we will return later. The Bill's purpose ought to be seen—as the MoD police representative was arguing—as bridging a limited gap until a police reform Bill is introduced, not to provide general powers. Amendment No. 9 is a necessary part of the restrictions that should be built into the Bill.

The Duke of Montrose: My Lords, the measures to which the extended powers will apply are listed in Schedule 4 and include Section 24(1) of the Agriculture Act 1967—which lies behind the agricultural census that is undertaken twice a year and discloses details of all farming businesses. That information is collected for general statistical purposes but details of individual businesses have until now been kept confidential. It is a major worry to me and, I should think, to many other farmers that Clause 17 might permit the disclosure of such information generally. If it does, I shall certainly support my noble friend's amendment.

Lord Elton: My Lords, I know that the House is concerned to preserve those elements of public and individual security that do not have to be diluted in the face of the present emergency. The noble Lord, Lord McIntosh, accepts that the term Xpublic authority" embraces a public authority outside the United Kingdom, including outside Europe. That term is defined in Clause 20(1)(a), which states that it has,
	Xthe same meaning as in section 6 of the Human Rights Act 1998 (c. 42)".
	Section 6(3) of the 1998 Act states that Xpublic authority" includes,
	Xa court or tribunal, and . . . any person certain of whose functions are of a public nature".
	Your Lordships will be pleased to hear that the term,
	Xdoes not include either House of Parliament or a person exercising functions in connections with proceedings in Parliament".
	We have here machinery that can result in confidential information being released to a foreign public authority. That could be the police or another body, certainly anywhere in Europe and arguably anywhere in the world. The proposal goes much further than the matter with which we are concerned. A public authority is also defined as any public authority, not merely the police. The ramifications of that are enormous and quite unnecessary. They would be curtailed by this group of amendments and I hope that noble Lords will support them.

Baroness Park of Monmouth: My Lords, I take that argument further by pointing out that accepting that Xelsewhere" means Xoutside the United Kingdom" requires us to reconsider Clause 18. It will allow the Secretary of State to give a direction controlling what will or will not be sent to Xoverseas proceedings". Subsection (4)states:
	XA direction under this section shall not have the effect of prohibiting . . . the making of any disclosure in pursuance of a Community obligation".
	That also leads us straight into Community obligations that are likely to be taken on soon, for instance, with regard to Europol.

Viscount Goschen: My Lords, during the Bill's passage through this House, there has been widespread—almost total—support for the Government's intention of combating terrorism. There has been an acceptance that they need additional powers and that those powers are valid. However, they are valid solely for the specific purpose of preserving national security and combating terrorism.
	As we have heard, the Bill is drawn much more widely than that. The argument that the Government deployed in Committee was that their intention was to focus the use of the Bill's powers on combating threats to national security and on countering terrorism, but that they needed wider, broader powers because terrorists are involved in many other crimes—which is, of course, true. As we have heard, terrorists can be involved in drug running, people trafficking, money laundering and a broad spread of other crimes. That is why the amendments, which were drafted by my noble friends and the noble Lord, Lord Phillips, sought to preserve the Government's ability to tackle terrorists who are involved in other crimes by ensuring that whatever crime the Bill's powers are focused on, such powers must be related to combating terrorism.
	I draw your Lordships' attention to Part 11, which is on page 62 of the Bill, and to Amendment No. 11. We spent much time in Committee discussing the vitally important subject of the retention of communications data. The Regulation of Investigatory Powers Act, which recently passed through your Lordships' House, is highly relevant to these provisions.
	The Government's arguments about whether or not the Bill's powers should be limited to combating terrorism and the preservation of national security are, I suggest, polarised in Clause 103(6). That subsection states: XA code of practice"—relating to the retention of communications data—
	Xor agreement under this section may contain any such provision as appears to the Secretary of State to be necessary—
	(a) for the purpose of safeguarding national security; or
	(b) for the purposes of the prevention or detection of crime or the prosecution of offenders".
	Noble Lords on the Conservative and Liberal Democrat Benches—and, indeed, occasionally on the Cross Benches—argued that that is an extremely broad power.
	Amendment No. 11 seeks to restrict that broad power in paragraph (b) and would insert:
	Xfor the purposes of prevention or detection of crime or the prosecution of offenders which may relate directly or indirectly to national security".
	In terms of drafting the code of practice, that paragraph would surely give the Government every possible power that they might require to address the issue about which we are all concerned—national security. The Government's argument that terrorists are involved in other crimes, such as drug running, is not relevant. If the Government seek to retain paragraph (b) as it is currently drafted, that is surely a tacit admission that they wish to use the Bill for all sorts of purposes that are wholly unconnected with counter-terrorism.
	This House and another place recognised the Government's need to take additional powers, but we have not said that they should be issued with a blank cheque under the cover of threats to our national security. I support the amendments.

Lord Rooker: My Lords, I shall do my best to respond to the amendment and those grouped with it; if those amendments were agreed to as a group, they could be described as wrecking amendments. That is our view.

Lord McNally: My Lords—

Lord Rooker: No, my Lords, I have only just started. I hope that the noble Lord will permit me to continue. I am not seeking to wind anyone up.

Noble Lords: Oh!

Lord McNally: My Lords, I told the Minister not to start trouble at the end of the evening. I should explain to noble Lords that the noble Lord and I had a conversation in which I said, XDon't make provocative statements right at the end of the evening, because that winds everyone up". He obviously misunderstood my advice and decided to do that right at the beginning instead.
	I seek to be constructive. Does the Minister think that the second report—actually, I believe that it is the fifth report—from the Joint Committee on Human Rights, which is on the Bill and which makes some pertinent recommendations, is a wrecking document? Many of its recommendations are very similar to the amendments.

Lord Rooker: No, my Lords, I do not accept that my description applies to any of the Select Committee reports that have come jointly from this House or from the other place. I shall in due course refer to a new report—it was published today—by the Defence Committee of the other House. There are positive suggestions in many of the reports that we are still—I stress that I speak in the present tense—doing our best to respond to. As I speak, they are being worked on.
	The noble Lord, Lord McNally, rightly told the House about what he said to me this morning. I obviously misunderstood him. However, I still maintain that, taken together, if this group of amendments were pressed as a group, they would wreck the Bill. I shall explain why. I shall be brief because we had an extensive debate in Committee—I make no complaint about that. In Committee, noble Lords did a good job of scrutinising a complicated Bill that will affect many government departments.
	In Clause 17, limiting disclosure of information to cases in which the public authority suspects or believes that information is related to a terrorist threat or a threat to national security raises a central issue that undermines many of the contributions of noble Lords. On the face of it, the proposition is attractive, but it would render the clause ineffective and would not lead to the result that noble Lords had in mind when they tabled the amendments.
	It is important to point out that it is frequently impossible for a public authority, which often does not have all the facts of a case, to determine whether a particular piece of information is relevant to a case of terrorism or a threat to national security. That is rather like noble Lords and their children or grandchildren trying to put a jigsaw together. You tip all the pieces out. You may have an idea of the picture but half-way through you realise that the picture is not quite right and ask yourself, XHave we put the wrong pieces in the jigsaw?" You have to examine every single piece to ensure that you have got the picture right. You might start by saying, XThe sky's the wrong colour. That piece doesn't fit here". It is only when pieces on the other side of the picture are put together that you see the connection. I use that analogy, for example, when we consider the activities of the investigating authorities. That thread has to run through the Bill and these clauses. In the original drafting of the Bill, and since, we sought to define in legislative terms. Noble Lords pushed us to rewrite the clause so that the definition would refer to terrorism only.

Lord Lester of Herne Hill: My Lords, I am grateful to the Minister for giving way. Is the noble Lord aware that the Joint Committee on Human Rights agreed with the Select Committee on the constitution of this House that the inclusion of non-emergency measures was inappropriate in emergency legislation required to be considered at such speed? Is he aware that all noble Lords across the House want this Bill to be an anti-terrorist Bill but they want it to satisfy principles of legal certainty and proportionality and not to go wider than that? The right of personal privacy with which we are concerned is a fundamental right.

Lord Rooker: My Lords, that is all very well if you stick to the definition of terrorism. We are not doing that because they are not working that way these days. International terrorists have rewritten the rule book. They operate in ways that were not conceived of a decade ago. We have to take appropriate measures.
	I set out a brief response to each of the amendments. Turning to Clause 17, at the time a public authority chooses to disclose to the police, say, an address which they suspect has been used by criminals, it may have no idea that those who live there are part of a terrorist network. It would not know. Its piece of the jigsaw is not connected to the parts held by other authorities. It is only in the course of the investigation that the situation becomes apparent. Under the Bill as drafted, the police would receive information related to suspect criminal acts. The police are the investigators. It is their job to put the various pieces together to see whether they make a picture. Many times they will not, but it is their job to add those pieces to the jigsaw.

Lord Thomas of Gresford: My Lords, I have listened on many occasions to this argument from the Minister. He says that we have to have powers to deal with every possible crime because we do not know how it will all fit together and we do not see the picture at the end.
	Surely it is possible, as the amendments seek to do, to confine the scope of the inquiry of the investigating authorities, whether the intelligence services or the police, to anti-terrorism. If they act in good faith, as I am sure they do and, for example, say to the public authorities which are required to disclose something, XWe are doing this in order to investigate terrorism", that is enough. No one will question it beyond that. However, with great respect, the Minister is instituting a dragnet which covers the whole realm and enables every possible corner of people's lives—their privacy, their tax returns and everything else—to be investigated by the intelligence services. The Minister has failed to answer that argument at each stage of the Bill.

Lord Carter: My Lords, I remind the House that we are on Report. I do not want to read out everything that the Companion states, but we are already out of order. However, the Companion states that arguments which have been fully deployed in Committee of the Whole House should not be repeated at length on Report. Noble Lords should speak only once. At the end of the Minister's reply the only person who should speak is the mover of the amendment except for very short questions of fact.

Lord Rooker: My Lords, I accept what the noble Lord, Lord Thomas, says. Clearly, we shall disagree on the issue. He obviously has a different view from the Government on the way the police conduct their investigations. We think that the police should have the power to assemble the pieces of the jigsaw. They have only the power to ask—

Lord Dixon-Smith: My Lords, this is a question of fact. I hope that the Minister will agree with me that if some crime has been committed, the police already have plenty of criminal law under which to investigate it. That is the point. We are dealing here with the extension of that power. If, under their criminal investigations, they find a connection to terrorism, that is a bonus. What is not right is to use these extensions of the law ab initio for criminal investigations. That is the distinction.

Lord Rooker: My Lords, disclosure regarding criminal proceedings would be accepted because it is part of the statute. But if one does not have the information to start the criminal proceedings one has to investigate. The police are not getting a brand new power. They are getting a power to investigate prior to proceedings. It is widening an existing power to seek that information. To that extent, it aids their investigation: the putting together of the jigsaw in respect of terrorist offences. That is power that they should have and be able to use.
	On overseas disclosures, I was somewhat taken aback. It will be very difficult for this country to fight international terrorism if we cannot co-operate with so-called Xforeigners"—used almost as a dirty word in this debate. Of course we have to co-operate with foreigners if we are to fight international terrorism. But the information disclosed will be fully compatible with the Data Protection Act and the Human Rights Act. All those checks are in place. We are not riding roughshod over people's civil liberties. It is axiomatic that we have to co-operate with foreigners.

Lord Renton: My Lords, the noble Lord used a rather unexpected expression. He said that the police have to investigate before they can take proceedings. That has always been the case. It does not need to be written into a statute, even this statute, in any fresh way.

Lord Rooker: My Lords, with respect to the noble Lord, the provisions need to be written into this statute because the police do not have the necessary powers, hence the extension of existing powers in the Bill. As an aside, perhaps I may speak to—

Baroness Ludford: My Lords, I beg the Minister's pardon for interrupting—

Noble Lords: Order!

Lord Carter: My Lords, will the noble Baroness please give way? I shall now read out our rules on Report.
	XOn report no Member may speak more than once to an amendment, except the mover of the amendment in reply or a Member who has obtained the leave of the House, which may only be granted to: a Member to explain himself in some material point of his speech, no new matter being introduced; the Lord in charge of the bill; and a minister of the Crown.
	XOnly the mover of an amendment or the Lord in charge of the bill speaks after the minister on report except for short questions of elucidation to the minister or where the minister speaks early to assist the House in debate.
	XArguments fully deployed in Committee of the whole House"—
	here I paraphrase: these arguments have been very fully deployed in Committee; I am not sure whether the noble Baroness was present—
	Xshould not be repeated at length on report".
	Could we now stick to our rules on Report?

Baroness Ludford: My Lords, I was not given a chance to ask my question. Perhaps I may ask a question of elucidation on the Minister's point about data protection. I am sure that the noble Lord is more of an expert on data protection than I am.
	The proposed framework decision on terrorism, which is being discussed today by the Justice and Home Affairs Ministers in Brussels, provides for exchange of information including where there is suspicion of a terrorist offence. What is the data protection regime which applies to that? Under the third pillar the normal EU directive on data protection does not apply. There are ad hoc data protection regimes for different parts of the third pillar. Can the noble Lord explain to me what is the regime for data protection and the exchange of information under the framework decision on terrorism?

Lord Rooker: My Lords, I shall take advice on this matter. I am not up to date with the negotiations in Brussels today. The content of the Bill which this House is now debating fully complies—governments can get it wrong—as regards access and exchange of information, with both the Data Protection Act and the human rights legislation. There are no new powers being given to the police in this Bill. It is a power to disclose voluntarily to the police and for them to be able to ask questions. We are not inventing the wheel here and that point has to be taken on board.
	Perhaps I may say something about Amendment No. 3 standing in my name. I hope that it will be accepted as a response to the debate. When one wants to accede in debate it is not always possible to be fully certain that the wording is correct. We had to consider the amendment tabled by the noble Lord, Lord Goodhart, at Committee stage on 28th November. Therefore, I hope my amendment is acceptable. I cannot telegraph everything for the other day of the Report stage.
	I say to the noble Viscount, Lord Goschen, as regards Clause 103 and the code of practice, that we shall be bringing forward an amendment in due course in this House to make sure that the code is subject to the affirmative resolution procedure of both Houses of Parliament. I hope that that will meet some of the points made in Committee concerning data retention. The amendment is not on the Marshalled List at the moment but it will be forthcoming. I hope that it can be produced at Third Reading, but if not, it will have to be dealt with in the other place. I hope that that will meet some of the issues because the code of practice cannot become reality, as we agreed, unless, first, industry agrees with government and, secondly, the Information Commissioner agrees with it. It is voluntary and there has to be consensus.
	In order to concrete that in, we shall make it subject to the affirmative resolution procedure. That may go some way to meeting the point made about the service providers and their comfort blanket in relation to what will be required of them under a voluntary code of practice in retaining data which they believe may upset their customers. I can only telegraph that amendment today because it is not on the Marshalled List. We hope to list it on Tuesday.

Viscount Goschen: My Lords, the noble Lord mentioned the point that I made and referred directly to the clause. I welcome his announcement that the affirmative procedure will be applied, but that does not go any way towards assuaging our concerns, although it is a welcome development.
	Can the noble Lord explain in very clear terms what he believes would be the effect of accepting Amendment No. 11 of the noble Lord, Lord Phillips of Sudbury, to Clause 103? That would allow the Government to put into the code of practice any provision which they required after consultation, dedicated towards addressing national security and for the purposes of the prevention or detection of crime or the prosecution of offenders which might relate directly or indirectly to national security?
	The noble Lord, Lord Phillips, could not have been more helpful in drafting the amendment and casting it as broadly as he possibly could. What will the Government be unable to do if they accept the amendment?

Lord Rooker: I shall come to that. Amendment No. 5 parallels Amendments Nos. 1 and 2 and to repeat myself possibly would not be fruitful. It means that disclosure may be to anyone and not just to those falling within the Regulation of Investigatory Powers Act, the FSA and the DPP. The request remains solely from within RIPA, plus the FSA and the DPP. I have already outlined the key aspects of the amendment which parallels what arose in relation to Clause 17 and my responses to Amendments Nos. 1 and 2. It does not make sense to revisit that issue.
	I shall therefore confine my comments to the question of limiting disclosure, terrorism and the threats to national security. In many ways this is also repetition, so I shall be brief. The amendment would severely limit disclosure. Clause 19 allows Customs and the Inland Revenue to disclose information to law enforcement and intelligence agencies for the investigation of crime. Reducing that gateway simply to cases of terrorism or threats to national security would be counter-productive and reduce the effectiveness of fighting terrorism.
	Perhaps I may give an example. There is a proven link between terrorist groups and criminal activities for which Customs are responsible. We know that some terrorist groups have been engaged for some time in large-scale drug smuggling and in the massive evasion of excise duties on cigarettes and alcohol. At the time Customs become aware of that, they may not have appreciated the significance of what is involved in terms of terrorist investigation and may not immediately recognise the connection with a terrorist group. They may simply believe that the Inland Revenue has been ripped off, the Chancellor is charging too much in tax and the criminals are trying to make a buck on the side with bucket shops around the country.
	Under the gateway, as drafted, if the safeguards are satisfied, the information could be passed to the police. Under the amendment the information would remain with Customs and a potentially vital piece of the jigsaw of intelligence would be denied and never reach the police. The same applies to Customs as regards the money laundering regulations.
	We also know, as regards the work of the Inland Revenue, that terrorist groups are relying on the work of the informal economy, the hidden economy, which is massive in some countries. It cannot be measured, but it is worth billions of pounds. It is estimated that 600,000 people enter Europe each year to work illegally. They pay to get there. Many of them are part of trafficking networks, providing more money to international traffickers in people than is earned in drug trafficking. Trafficking in people is big business. It may be that some of that money is used to fund terrorism, but the Revenue does not have the expertise to recognise terrorist activity in every case. Therefore, there is a need for it to be able to assist the police with its part of the jigsaw.
	I turn briefly to the amendments mentioned by the noble Viscount. Amendments Nos. 10, 11 and 12 would restrict the second purpose for which data may be retained by communications service providers to either national security alone or to national security and the prevention and detection of crime which relate to it. All the provisions of this Bill are intended to counter terrorism. But for 11th September we would not be here today debating this Bill. That is the reality. We would not have had this Bill. The Bill and its content were not planned. I know that the bribery and corruption clauses are a separate matter, but I do not think there is an issue about them in this House. It is important that, in bringing forward this legislation, we are able to do so in such a way that it helps in the fight against terrorism internationally in co-operation with our partners or on our own and is recognised as the precautionary response that we need to make on behalf of the public who would never forgive us if something happened and we had decided that the appropriate legislation was not worth it because we did not want to bother Parliament and we could not guarantee that a particular clause was directly related to the act that had taken place. We do not want to take a narrow view of the purposes of the legislation because it would hamper our effectiveness in combating crime.
	I said in Committee that we cannot meaningfully distinguish between terrorism and other forms of crime for a couple of reasons. Terrorists are criminals anyway and other criminal acts foster and resource terrorism. One example that I have given, which I do not need to repeat, is the importation of cigarettes. Some 40 million cigarettes were seized from a ship and it was known that a large proportion of that consignment was destined to criminals linked to paramilitary organisations. The idea that criminals are not connected to terrorism is wrong. We need to be able to consider all the pieces of the jigsaw.

Lord Peston: My Lords, my noble friend knows that I intensely dislike parts of this Bill. That will be made clear on Monday. However, I found his argument about the pieces of the jigsaw totally compelling. That appears to me to make good sense. I do not find the wording of Clause 17(2)—
	Xthe purposes of any criminal investigation",
	and so on—at all troubling. But I understood one or two noble Lords to be asking a slightly different question. It would help the House if my noble friend placed his answer on the record.
	I believe that noble Lords are worried about what one may call a Xrandom walk" through everyone's tax returns to see what may turn up. As I understand my noble friend, that activity would not be possible; for example, the authorities could not look at my tax return or that of my noble friend just because they thought that we might be engaged in criminal or terrorist activities as they would have no reason to believe that. Can the Minister reassure the House that that kind of random trawl is not suddenly to be permitted under this legislation?

Lord Rooker: My Lords, absolutely. That is one of the problems. We need to take appropriate action because criminal acts are widespread and the funding of terrorism is not always known. It is possible that Joe Public will believe that the Government will have a way into his bank account, into his finances and into his personal life. That is not the case. The authorities must have good reason to ask questions. The public will be covered by the data protection and the human rights legislation.
	There are no powers that allow for widespread trawls through people's tax affairs and bank accounts. That is not what we are about. The powers in this legislation will not cover that. My noble friend can rest assured. The powers have to be precautionary and proportional; otherwise we shall fall foul of the human rights legislation to which we have signed up. There is no derogation from the Human Rights Act in this part of the Bill. To have that kind of intrusive activity would not be proportional. We would certainly be brought to book if that ever occurred. That is an issue on which I may not be able to satisfy many noble Lords.
	Amendment No. 15 specifies that an order under Clause 104 can be made only for the purposes prescribed in the previous clause, which forms part of this discussion. I can assure noble Lords that the order under Clause 104 would have to be restricted to those purposes, as we are constrained by EU Directive 97/66/EC on data protection in the telecommunications sector. We seek to work within the legal constraints that are already in place. The directive to which I have referred allows data to be retained beyond the period for which it is required for business purposes only for restricted law enforcement purposes. We cannot act in contravention of EC law so the amendment is unnecessary.
	The MoD amendments, Amendments Nos. 6, 7 and 8, relate to Clause 99. Several noble Lords referred to them. I shall seek to conclude my remarks by responding to those amendments, although there is a point about agricultural disclosure which relates to what I said earlier. The legislation is such that the police can acquire the information pursuant to criminal proceedings, but they have to carry out an investigation to discover whether the criminal proceedings are warranted. It is an extension of police powers; it is not a new police power. It is a pre-proceedings power that does not exist at the moment in our legislation.
	I ask your Lordships to reject Amendments Nos. 6 and 7. I shall give the House some examples to explain why these amendments would severely restrict the ability of the Ministry of Defence Police to counter terrorism. Often the suspicious behaviour of ordinary criminals is no different from that of terrorists preparing to make an attack. A Ministry of Defence police officer may be on patrol outside a defence establishment when he passes a stationary car. He sees the driver and the passenger duck down as he drives past and then the suspicious car starts to drive off. Immediate action is required. But how is the officer able to assess whether the individuals are criminals planning a burglary or terrorists planning an attack?
	If these amendments were accepted the officer would not be able to act without seeking the permission of the local police, so he would not be able to take urgent, but necessary, action. In that kind of situation the MoD police officer needs to be able to act. Let us suppose that those in the car had a primed bomb or a mortar in the boot and the officer had been able to discover that. Will noble Lords vote for an amendment that would prevent a MoD police officer from acting in those circumstances?
	A further example is that terrorists invariably carry out preliminary assessment surveys and make dummy runs of their plans. They must have done that before they mortar-bombed the Cabinet a few years ago. They must have practised and they must have made dummy runs. If the Ministry of Defence Police receive intelligence that a stolen car has been driven round or near a military base, they need to act urgently. The intelligence may give the officers a strong suspicion that a driver is a terrorist on a scouting exercise or a dummy run, but he may also be a car thief, stealing cars to order to take them to the docks or elsewhere for respraying.
	If these amendments were accepted the MoD Police would not be able to act without the permission of the local police because of the absence of an imminent threat of violence, but the delay might mean that the opportunity to apprehend the suspect was lost. I am sure that noble Lords would not want to vote for that.
	A third example is a suspect found near a sensitive defence property who fits the intelligence profile of a terrorist. He is seen using binoculars and cameras and attempting to conceal himself. He could be a twitcher or he might be a terrorist. The only way to find out is to stop him and question him and if reasonable suspicion is aroused, to search and, if necessary, to detain him. The search may reveal incriminating evidence such as notes, plans or weapons, but under these amendments the search could not be carried out no matter how strong are the suspicions of the officer because there is no immediate threat of violence. I am sure that noble Lords will not want to vote for an amendment of that kind.
	I want to reassure the House that we are considering a power that is strictly limited to emergencies in terms of MoD Police operating outside the perimeter fences of MoD establishments. If the MoD police officer can contact the local police force without prejudicing the need to act, he must do so.
	It is clear that your Lordships' concern has centred on the safeguards that are in place. In Committee the noble Lord, Lord Wallace, cited the report of the Joint Committee on Human Rights. To deal with the concerns of the Joint Committee, let me reassure your Lordships that the application of safeguards to the MoD Police is not unclear. The MoD Police receive the same training as members of other police forces. Indeed, Essex police force, which has recruited some MoD police officers, has been happy to deploy those officers on the streets without further training. MoD police officers who have been deployed in Kosovo to police communities there have received widespread praise for the job that they have carried out.
	The MoD Police Force is subject to the Police Complaints Authority by virtue of an agreement made under Section 96 of the Police and Criminal Evidence Act 1985. The PACE codes of practice apply to the MoD Police, just as they apply to other police forces. The same goes for the reporting requirements. For example, if MoD Police officers exercise the power to search in Section 1 of PACE, they are required to make records under Section 3 like any other police officer. As for the police committee of the MoD police, the Secretary of State is in favour of openness wherever possible and is minded to have meetings of the committee held in public.
	We propose to make further changes to the MoD Police disciplinary arrangements to bring them fully into line with those in other police forces. Furthermore, we propose to put inspection by Her Majesty's Inspector of Constabulary on a statutory basis in the police Bill. I remind noble Lords that those changes were part of the Armed Forces Bill.
	Amendment No. 8 seeks to wipe out Clause 99. That clause is an important weapon in the fight against terrorism. The terrorist threat has existed for a considerable time. For that reason, similar provisions were introduced into the Armed Forces Bill. I have looked at some of the debates. I understand that, prior to the general election, because of the speed and the time necessary, the amendments were accepted by the Committee considering the Armed Forces Bill in the other place, which is a rather different procedure to the normal Bill procedure in another place, as noble Lords understand. The Committee said:
	XWe believe there is a case for giving MDP officers greater powers than that of a citizen when they are attempting to deal with emergency situations which they come across in fulfilling their normal duties."
	But since 11th September—this is the point of bringing forward these provisions now—the nature of the terrorist threat has changed. It is higher and different. These powers are an integral part of the response to the terrorist threat. Clearly, military bases and establishments are potential terrorist targets, as indeed are their personnel. There is a need for the MoD Police to be able to act at an early stage. For those reasons, it is no longer appropriate to restrict the emergency power to offences involving the use of a threat or violence, as was the case in the Armed Forces Bill. In our view, the Bill is the most appropriate vehicle for these reforms.
	The Defence Select Committee in another place has unanimously agreed. In a report published today, it stated:
	XWe have examined the proposals relating to the Ministry of Defence Police contained in the Anti-terrorism, Crime and Security Bill. We conclude that they are appropriate and sensible. There was a strong case for an extension of the MDP's powers before 11 September but this has been reinforced in the light of the change in the perceived threat from terrorism.
	XWe acknowledge the concerns which have been expressed about the possible adverse effects of extending the MDP's jurisdiction but we are not persuaded that they call into question the case for the proposed measures".
	I have already dealt with those concerns. I remind your Lordships that there has been no criticism in this House or the other place of the extension of the jurisdiction of the MoD Police to act where crimes are directed at persons over whom they already have jurisdiction.
	Similarly, there has been no criticism of the proposal to extend the jurisdiction of the MoD Police to act where they are requested by another police force; nor of the proposal that the MoD Police should be able to lend officers to other forces. Indeed, for a considerable time there has been a power to act on a request from local police forces in the vicinity of MoD land.
	I conclude by giving noble Lords one further example why Clause 99—

Lord Tebbit: My Lords, I have a simple question. Do these provisions for the MoD Police apply to Northern Ireland?

Lord Rooker: Yes, my Lords. My noble friend Lord Bach says, Xyes". He is in the Ministry of Defence. If there is any problem about that I shall come back to the noble Lord. As far as I know, the Ministry of Defence is a UK organisation. We are here dealing with terrorism. Terrorism in the UK is a reserved matter for the Westminster Parliament. That should be a concrete answer.
	However, I want to finish by giving a further example of why the clause is needed. At the present time, the Ministry of Defence Police cannot be requested by another police force to help protect injured service personnel in civilian hospitals. Because of changes with regard to military hospitals in recent years it is now more likely that our service personnel—perhaps injured abroad—will be treated and looked after in civilian hospitals. There is no power for the local police constable to ask the MoD Police to guard those personnel who, for obvious reasons, are in the terrorists' sights. Those hospitals are not on defence land. They are not Xin the vicinity of" defence land. I do not need to spell out the issue any more in order to make a case to noble Lords why Clause 99 should stand unamended as part of the Bill.

Lord Phillips of Sudbury: My Lords, we are grateful to the Minister for endeavouring to defend the Government's position in relation to the amendments. When he started he made a lively analogy with a jigsaw. A jigsaw has a big picture. It can be pieced together by reference to a clear picture. Clause 17, and the other clauses to which the group of amendments relate, has no picture. It has no limits. It does not even mention national security or terrorism.
	So while the Minister made a strong case for Clause 17 with such a limitation, he made no case whatever for Clause 17 unamended. I put to your Lordships that it was perfectly legitimate, but wholly unrealistic, for the Minister to spend the past hour talking purely about terrorism and about the things with which we are all concerned. The clause goes to any criminal offence, however petty, wherever, whenever and by whomsoever. It is not confined to the police and security authorities. Any public authority, here or abroad, whether hybrid or not, can make any request for disclosure under this hugely wide Clause 17. And the good Minister cannot stop them.
	Once this is through the net he cannot stop them. It will be no good him then saying, XOh my goodness, I did not intend it to relate to some appalling regime abroad trying to use these powers to force disclosure from some public authority here under this Act". It will be no use at all. It will be no use either the noble Lord saying, XBut this is only a discretionary power on the part of public authorities". The noble Lord, Lord McIntosh, repeatedly said that. It is not so. The fact is that anyone with an entitlement to request disclosure under the Bill will be able to seek judicial review for good Wednesbury reasons against any public authority that declines to give it. That is the legal fact.
	To that extent, it creates a right to information. Repeatedly what has been said is, XBut don't worry, we've got the Human Rights Act". When will the Minister understand? I forgive him and the noble Lord, Lord McIntosh, a lack of understanding because they are not lawyers and have not seen this in practice. But if one deals with clients seeking a remedy where the only resort is under the Human Rights Act at large then the noble Lords would understand why on this side of the House—indeed on all sides of the House, because no one ever seems to speak for the Government on these measures—we feel so strongly that the remedies for the citizen are totally inadequate.
	I turn to the scope of the power if the clause is amended in accordance with the group. I shall speak to Clause 17 because one cannot speak for all of them. If the amendments are agreed to, what will Clause 17 say? Where will it leave the hard-pressed police and security authorities? The noble Lord, Lord Rooker, said that this would allow the Xtwitcher-terrorist"—I think he described him—to get away. It was a bird watcher but also a terrorist under the noble Lord's scenario. He said that it would prevent the police from doing anything about the person who was at the boundary or whatever place it might be with his binoculars and all the rest of it. He said that there would be no immediate threat of violence. But that is not what Clause 17 says. It is not what our amendments do anything about. One does not need a threat of violence under Clause 17 for the powers to be exercised, even with our amendments. Our amendments give an enormously wide scope to the police and security authorities, because they allow them to take action under Clause 17 if there is merely a suspicion that there may be an indirect relationship with a risk to national security or of terrorism.
	That must be the widest allowance in the history of British law. For the Government to say that that would tie the hands of the security authorities because it would not allow them to do anything unless there was an immediate threat of violence simply shows that the Minister has not endeavoured to understand what the amendments are about.

Lord Marsh: My Lords, is the noble Lord saying that if the person concerned believes that there may be a threat of serious violence, he should not have power to investigate it?

Lord Phillips of Sudbury: My Lords, I am saying precisely the reverse. The clause as amended would allow anyone who believed or had a suspicion that there might be an indirect relationship with a risk to national security to request or impart information.
	The Minister spoke as if we were seeking to knock back the wide provisions of Clause 17(2)(a), (b), (c) and (d). I endeavoured earlier to explain how extraordinarily wide are the gateways that paragraphs (c) and (d), in particular, open up. But we do not intend to touch those. We will allow those wide gateways; we understand the difficulties of the security community; but we want those powers to be used in relation to threats to national security or to terrorism. That is all.
	I shall not take the debate further, except to say that I cannot resist referring to the fact that, at various points during this hurried debate during the past few days, Ministers have expressed indignation at references from this side of the House to the powers of the Bill, taken collectively, to allow trawling and, as I put it in one debate, mass surveillance. Without the restrictions to matters of national security and terrorism, they are precisely that.
	One has only to consider the provisions of Clause 103, to which one of the amendments relates, which, with Clause 104, will allow the Secretary of State to direct the entire industry of internet service providers to keep information for years on end—to warehouse it, as it is called. The Minister shakes his head, but that is the fact. Let us look at Clause 104: the Secretary of State can make a general direction; he is not subject to any say-so. The communications providers concerned will then have to keep communications data warehoused for years. Access to that data will be enabled under the existing provisions of the Regulation of Investigatory Powers Act 2000. We seek to confine that powerful tool in the Secretary of State's hands to national security and terrorist matters, and to ensure that that warehoused communications data should be accessed only for the same purposes.
	I shall end by quoting from an article in The Times on Tuesday. We like to think that we in this country are the exemplars—the great preservers—of human rights and civil liberties. On the whole, I should like to think that and believe it. Walter Schwimmer is Secretary-General of the Council of Europe—which was, of course, the source of the European Convention on Human Rights that has found lodgement in our legislation in the Human Rights Act 1998. He said:
	Xno one can deny that a derogation"—
	under Article 5—
	Xis a very serious step. It is one that could set an unfortunate precedent for other countries where the rule of law tradition is not as strong. After September 11 no other European country has taken similar measures ... The fight ahead of us is not only against terrorism but also to protect democratic values and fundamental rights and freedoms so that they remain deeply entrenched in our society".
	We are not saying that we should not seek a derogation; we all agree that we should. But, in relation to these measures, we say that that derogation must be sought only on the basis that the extremely wide—nay, unprecedented—powers should be confined to the purposes for which they were advanced. I wish to test the opinion of the House.

On Question, Whether the said amendment (No. 1) shall be agreed to?
	Their Lordships divided: Contents, 227; Not-Contents, 145.

Resolved in the affirmative, and amendment agreed to accordingly.

Lord Phillips of Sudbury: moved Amendment No. 2:
	Page 7, line 17, at end insert—
	X( ) Information may only be disclosed voluntarily under this section if the public authority concerned believes or suspects that the disclosure may be of information which directly or indirectly relates to a risk to national security or to a terrorist.
	( ) Any request by a relevant public authority for disclosure of information under this section may only be made if it believes or suspects that that information may relate directly or indirectly to any risk to national security or to a terrorist.
	( ) XRelevant public authority" has the same meaning as in Chapter 2 of Part 1 of the Regulation of Investigatory Powers Act 2000 (c. 23) save that there is added thereto the Financial Services Authority and the Director of Public Prosecutions.
	( ) XTerrorist" has the same meaning as in Part 4 of this Act."
	On Question, amendment agreed to.

Lord McIntosh of Haringey: moved Amendment No. 3:
	Page 7, line 21, leave out subsection (4) and insert—
	X(4) The Treasury shall not make an order under subsection (3) unless a draft of it has been laid before Parliament and approved by a resolution of each House."

Lord McIntosh of Haringey: My Lords, this amendment was moved by the noble Lord, Lord Goodhart, in Committee. It conforms to the change made by the Select Committee on Delegated Powers and Deregulation from negative to affirmative resolution. I beg to move.

Lord Marlesford: My Lords, I am slightly confused by the amendment which reads:
	Xunless a draft of it has been laid before Parliament and approved by a resolution of each House".
	That is fine at the present time, but I understood that the Government intended to put forward proposals for changes to your Lordships' House which would remove the power to reject orders and substitute the power only to delay them. Am I wrong?

Lord McIntosh of Haringey: My Lords, under the existing rules of this House and another place a distinction is drawn between a negative resolution, subject to annulment procedures, and an affirmative resolution. At the moment the Bill provides for a negative resolution procedure. This amendment provides for an affirmative resolution procedure.

On Question, amendment agreed to.
	Schedule 4 [Miscellaneous]:
	[Amendment No. 4 not moved.]
	Clause 19 [Disclosure of information held by revenue departments]:

Baroness Buscombe: moved Amendment No. 5:
	Page 9, line 18, at end insert—
	X( ) Information may only be disclosed voluntarily under this section if the Commissioners of Inland Revenue or the Commissioners of Customs and Excise believe or suspect that the disclosure may be of information which directly or indirectly relates to a risk to national security or to a terrorist.
	( ) Any request by a relevant public authority for disclosure of information under this section may only be made if it believes or suspects that that information may relate directly or indirectly to any risk to national security or to a terrorist.
	( ) XRelevant public authority" has the same meaning as in Chapter 2 of Part 1 of the Regulation of Investigatory Powers Act 2000 (c. 23) save that there is added thereto the Financial Services Authority and the Director of Public Prosecutions.
	( ) XTerrorist" has the same meaning as in Part 4 of this Act."

Baroness Buscombe: My Lords, I beg to move.

On Question, Whether the said amendment (No. 5) shall be agreed to?
	Their Lordships divided: Contents, 227; Not-Contents, 138.

Resolved in the affirmative, and amendment agreed to accordingly.
	Clause 99 [Jurisdiction of MoD police]:
	[Amendments Nos. 6 to 8 not moved.]

Lord Dixon-Smith: moved Amendment No. 9:
	After Clause 102, insert the following new clause—
	XSCOPE OF POWERS CONFERRED BY THIS PART
	Any powers conferred by this Part shall only be enforceable in relation to any suspicion, or investigation, or acts, of terrorism or any matters of national security."

Lord Dixon-Smith: I beg to move.

On Question, Whether the said amendment (No. 9) shall be agreed to?
	*Their Lordships divided: Contents, 227; Not-Contents, 135.

Resolved in the affirmative, and amendment agreed to accordingly.
	Clause 103 [Codes and agreements about the retention of communications data]:
	[Amendment No. 10 not moved.]

Lord Phillips of Sudbury: moved Amendment No. 11:
	Page 62, line 36, leave out paragraph (b) and insert—
	X(b) for the purposes of prevention or detection of crime or the prosecution of offenders which may relate directly or indirectly to national security."

On Question, Whether the said amendment (No. 11) shall be agreed to?
	Their Lordships divided: Contents, 228; Not-Contents, 133.

Resolved in the affirmative, and amendment agreed to accordingly.
	[Amendments Nos. 12 and 13 not moved.]
	Clause 104 [Directions about the retention of communications data]:

Lord Geddes: My Lords, before calling Amendment No. 14 I must advise the House that if it is agreed to I cannot call Amendment No. 15 because of pre-emption.

[Amendment No. 14 not moved.]

Baroness Buscombe: moved Amendment No. 15:
	Page 63, line 7, at end insert Xfor purposes prescribed in section 103(6)"

Baroness Buscombe: My Lords, I beg to move.

On Question, Whether the said amendment (No. 15) shall be agreed to?
	Their Lordships divided: Contents, 209; Not-Contents, 134.

Resolved in the affirmative, and amendment agreed to accordingly.

Lord Geddes: My Lords, before I call Amendment No. 16, I must advise the House that there is a misprint at the end of the proposed amendment, which should refer to Section 103(6) rather than 103(5).

[Amendments Nos. 16 to 21 not moved.]
	Clause 21 [Suspected international terrorist: certification]:

Lord Campbell of Alloway: moved Amendment No. 22:
	Page 10, line 38, at end insert—
	X(1A) Any certificate issued under subsection (1) shall be accompanied by written grounds on which the belief or suspicion of the Secretary of State is reasonably entertained (without documents, materials, or information for which privilege from disclosure will be claimed on grounds of national security), which shall be subject to judicial review in the High Court."

Lord Campbell of Alloway: My Lords, having carried this torch on Second Reading and in Committee, I am fully conscious that if I speak for too long it could well blow itself out. The amendment is wholly dependent on Amendments Nos. 32 and 33, which would delete Clause 30 and Clause 31(2). That would remove the ouster provisions to the jurisdiction of the High Court on judicial review. I shall support those amendments.
	The purpose of the amendment is that, in accordance with minimum requirements of our tenets of natural justice, the Secretary of State shall issue with the certificate, under Clause 21(1), written grounds to the person certified in which the application for leave to proceed to a substantive hearing on judicial review may be made and that, at the substantive hearing, the material on which certification was issued should be made available to the judges designated to sit. As a measure of assurance for the security services, it is suggested that the judges so designated could be Privy Counsellors. The question of privilege from disclosure for sensitive intelligence was fully discussed in Committee.
	Before I sit down, I wish to point out that the ouster clauses as drafted are wholly effective, are without the constitution—which it is the acknowledged function of your Lordships' House to safeguard—breach the separation of powers and usurp the functions of the judiciary. There is no just cause for excluding the person certified from access to judicial review, for limiting appeals on SIAC decisions to the Court of Appeal on an error of law or for excluding an application to the High Court for judicial review of a decision by SIAC.
	The whole structure of the Government's proposed regime is unacceptable. I beg to move.

Lord Lester of Herne Hill: My Lords, with great respect to the noble Lord, Lord Campbell of Alloway, he may misunderstand the position. The noble and learned Lord the Attorney-General described it accurately in Committee, but I shall make some brief comments of my own.
	SIAC was set up because English judicial review and Northern Irish judicial review proved to be a wholly ineffective remedy. That is why Amnesty, Liberty, the AIRE Centre and the Joint Council for the Welfare of Immigrants proposed to the European Court of Human Rights in the case of Chahal that the Canadian procedure along the lines of SIAC should be introduced. The SIAC procedure results in the establishment of an independent and impartial tribunal established by law which must act judicially under the Human Rights Act, including Article 6 of the European Convention on Human Rights.
	That does not mean that the procedure of SIAC does not need to be improved and strengthened, or that there is a case for a complete ouster of judicial review—a matter that we shall come to on later amendments. However, it means that one should not exaggerate about the existing mechanism.
	My party commended the Government for introducing SIAC. In Committee the noble and learned Lord the Attorney-General undertook that the suspected terrorist would be provided with a statement of the grounds for refusal before the appeal, provided it did not risk exposing closed material. My view is that that should be incorporated if not into the Bill, then into subordinate legislation. But, in any case, that undertaking is obviously vital if there is to be natural justice. Although I shall speak in favour of the amendment so far as ouster is concerned, I do not think it is fair to criticise the Government for using the SIAC procedure which I have said before, and say again, is a fair compromise.

Lord Goldsmith: My Lords, the issues involved in this amendment were discussed at some length in Committee. I shall cover them more briefly on this occasion.
	There are two elements to the amendment, one of which is judicial review. I say at once that I am grateful for what the noble Lord, Lord Lester of Herne Hill, has said, confirming the comments I made in Committee and on Second Reading, that judicial review as properly understood is and was a wholly ineffective remedy. That is what the European Court of Human Rights said and that is why SIAC has been invented. I shall discuss that matter in more detail when we discuss Amendments Nos. 30 and 31, which is when I understand the substantive debate is to take place.
	As I say, I do not want to enter a detailed discussion about judicial review at this stage. I refer to XJudicial Review" with a capital Xj" and a capital Xr" because, as noble Lords know, I regard SIAC as being judicial review with a small Xj" and a small Xr" in the sense of proper judicial scrutiny by a body including a High Court judge. The amendment of the noble Lord, Lord Campbell of Alloway, demonstrates precisely why judicial review in that classic sense is an inappropriate remedy. Let me explain why.
	If the Secretary of State's certificate were—as this amendment proposes—to be accompanied by a list of reasons for the decision, the person against whom the certificate is issued will have an immediate right of appeal to SIAC. That appeal will consider not just the disclosable reasons for the detention—which is all that the noble Lord, Lord Campbell of Alloway, asks for in his amendment—but also the non-disclosable reasons for the decision; that is, the intelligence information on which the Secretary of State made his decision. Sensitive information is likely to be involved which cannot be disclosed without risk. However, SIAC would be able to look at that; the court on judicial review would not. The amendment of the noble Lord, Lord Campbell of Alloway, recognises that. A court on judicial review would not be able to look at the full picture; it would not, therefore, constitute a safeguard for the person detained. As I say, I shall develop that point later.
	I refer to the other aspect of the amendment; namely, the requirement placed on the Secretary of State to provide written grounds for his belief or suspicion. As I explained in Committee, there is already on the face of the Bill an obligation to apply the SIAC rules. As I also explained in Committee, the SIAC rules already impose an obligation on the Secretary of State, if he wishes to resist the appeal, to give not just the reasons for resisting it but also to provide the evidence upon which his decision is based. He must provide the commission with a summary of the facts relating to the decision being appealed, the reasons for the decision, inform the commission of the grounds on which he opposes the appeal and provide it with a statement of the evidence which he relies upon in support of those grounds. That obligation is already on the face of the Bill through the SIAC rules.
	In Committee I further undertook that, in addition to that full statement of the reasons, not limited to the disclosable part, at the time the certificate is issued—which I recognise may be shortly before the information is provided following an appeal—there will also be provided to the suspected international terrorist an outline of the case against him to the extent that that can be done without risking the exposure of closed material. Given the existence of an obligation through the rules imposed on the face of the Bill, I should hope that the undertaking I have given will satisfy the one remaining point which is simply to advance a little in time the understanding on the part of the suspected international terrorist of why he is detained. However, I repeat what I said in Committee, without elaborating on it; namely, that the person against whom a certificate is issued will immediately be able to appeal. He does not have to ask for permission, as one does on judicial review. He can go straight to SIAC and at that stage if the Secretary of State wishes to oppose the appeal he will then have to produce his full reasons for doing so, including all the disclosable material. I hope that that undertaking—

Lord Lester of Herne Hill: My Lords, I am grateful to the noble and learned Lord the Attorney-General for giving way. Am I right in thinking that in any event SIAC is under a duty imposed by Section 6 of the Human Rights Act to ensure a fair hearing and, therefore, natural justice must be done to the extent that is possible in the circumstances?

Lord Goldsmith: My Lords, absolutely. I think that I made that point on a previous occasion but certainly that is correct. I hope that in the light of my comments and given that, as I understand it, the main debate on judicial review is to take place on a later amendment, which is why I shall not deal with the matter in any more detail now, I respectfully ask the noble Lord to withdraw the amendment.

Lord Campbell of Alloway: My Lords, this is not the time or the place in which to entertain an erudite discussion on the rectitude of the views of the noble Lord, Lord Lester, that are taken for granted by the noble and learned Lord the Attorney-General, and I do not propose to do so. As the noble and learned Lord the Attorney-General knows, I, for reasons I shall not repeat, do not accept at all that judicial review is an inappropriate or ineffective remedy. I do not accept, as he well knows, the criticisms that he has made of my amendment. Not a word has been said by the noble and learned Lord to excuse a breach of the constitution and the separation of powers. The merits of judicial review will no doubt be discussed on Amendments Nos. 32 and 33. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 25 [Certification: appeal]:

Lord Rooker: moved Amendment No. 23:
	Page 13, line 10, leave out from Xmay" to end of line 11 and insert Xbe commenced only—
	(a) within the period of three months beginning with the date on which the certificate is issued, or
	(b) with the leave of the Commission, after the end of that period but before the commencement of the first review under section 26."

Lord Rooker: My Lords, government Amendments Nos. 23 and 24 give effect to the request of the noble Earl, Lord Russell, in Committee; namely, that the period of three months for appealing the decision of the Secretary of State to issue a certificate under Clause 21 should be capable of extension with the leave of SIAC. The amendments may seem a little elaborate as we have limited SIAC's discretion to allow appeals after three months to situations where the review of a certificate is not already under way.
	Amendments Nos. 27 and 29 are consequential upon Amendments Nos. 23 and 24. Amendment No. 28 provides that a decision by SIAC whether or not to allow an out of time appeal should not be subject to appeal to the Court of Appeal. Amendment No. 25 provides that the second and subsequent reviews will take place every three months after the previous review has been determined. The first review will continue to be six months after the certificate is issued, or, where applicable, after the appeal against that certificate has been finally determined. Amendment No. 26 is consequential upon Amendment No. 25. I hope that that satisfies noble Lords. As I have said before, the amendments result from the Government listening to what was said in Committee and bringing forward appropriate amendments. I beg to move.

Lord Goodhart: My Lords, we welcome these amendments, which indicate at least a modest degree of flexibility on the part of the Government. They are plainly a step in the right direction.

Baroness Buscombe: My Lords, I add on behalf of Her Majesty's Opposition that we also welcome the amendments.

The Lord Bishop of Portsmouth: My Lords, likewise, we support the amendments with some reservations about areas in Amendment No. 26 concerning SIAC. However, on the whole, we support the amendments.

On Question, amendment agreed to.
	Clause 26 [Certification: review]:

Lord Rooker: moved Amendments Nos. 24 to 27:
	Page 13, line 13, leave out from Xmust" to end of line 20 and insert Xhold a first review of each certificate issued under section 21 as soon as is reasonably practicable after the expiry of the period of six months beginning with the date on which the certificate is issued.
	(1A) But—
	(a) in a case where before the first review would fall to be held in accordance with subsection (1) an appeal under section 25 is commenced (whether or not it is finally determined before that time) or leave to appeal is given under section 25(5)(b), the first review shall be held as soon as is reasonably practicable after the expiry of the period of six months beginning with the date on which the appeal is finally determined, and
	(b) in a case where an application for leave under section 25(5)(b) has been commenced but not determined at the time when the first review would fall to be held in accordance with subsection (1), if leave is granted the first review shall be held as soon as is reasonably practicable after the expiry of the period of six months beginning with the date on which the appeal is finally determined.".
	Page 13, line 22, leave out Xsix" and insert Xthree".
	Page 13, line 23, leave out Xa review under subsection (1) or" and insert Xthe first review or a review under".
	Page 13, line 26, after X(1)" insert X, (1A)".
	On Question, amendments agreed to.
	Clause 27 [Appeal and review: supplementary]:

Lord Rooker: moved Amendments Nos. 28 and 29:
	Page 14, line 6, after Xsection" insert X25(5)(b) or".
	Page 14, line 14, leave out X26(1)" and insert X26(1A)".
	On Question, amendments agreed to.

Lord Ackner: moved Amendment No. 30:
	Page 14, line 38, at end insert—
	X( ) For the purposes of appeal and review under sections 25 and 26, the Commission shall comprise only such members as have been appointed by the Lord Chancellor after consultation with the Lord Chief Justice.".

Lord Ackner: My Lords, in moving Amendment No. 30, I shall speak also to Amendment No. 31. These two amendments are a sort of bonne bouche before one reaches the piece de resistance, which of course is the next judicial review to be taken.
	The Government have been at pains, and rightly so, to emphasise the strength and substance of SIAC. I simply endeavour to add a small gloss to that respectability in two ways. The first is set out in Amendment No. 30. I respectfully propose that only members of the commission who have been appointed by the Lord Chancellor—these are the additional words—
	Xafter consultation with the Lord Chief Justice",
	are entitled to sit.
	Amendment No. 31 provides that:
	XFor the purposes of appeal and review under sections 25 and 26, two of the three members of the Commission must hold or have held high judicial office (within the meaning of the Appellate Jurisdiction Act 1876 . . .".
	Under that Act, and relative to this country, high judicial office means, apart from the Lord Chancellor, a judge of the High Court or of the Court of Appeal. At present, that is as it stands. However, under the Act the obligation is that at least one of the members must be of high judicial office. I suggest that, out of the three, because it is emphasised that this commission performs important legal functions—so important that it has all the powers and more of judicial review—two-thirds of those who comprise the commission should be judges.
	That is all that there is to my amendments. They are short and simple and I hope that they will be thoroughly acceptable to the Government. I beg to move.

Lord Donaldson of Lymington: My Lords, of course I support the amendment. I rise to my feet purely because my noble and learned friend Lord Ackner said that SIAC has all the powers of judicial review. That is not correct.

Lord Goldsmith: My Lords, I look forward to returning to the last observation of the noble and learned Lord, Lord Donaldson, in, I believe, the next group. I hope that I shall give some comfort to the noble and learned Lord, Lord Ackner, although perhaps not quite in the terms of the amendment that he has tabled.
	Amendment No. 30 is to the effect that appointments to SIAC by the Lord Chancellor should be made only after he has consulted the Lord Chief Justice in cases where the members would hear an appeal on, or a review of, a certificate made under Section 21. There are a number of reasons why I am not attracted to that amendment.
	First—when tabling the amendment, the noble and learned Lord would not have known that this was the case—this issue had been anticipated by the Lord Chancellor and the Lord Chief Justice, and arrangements have been made to deal with it in a manner which, I am told, satisfies them both. Those arrangements are that all High Court judges currently nominated to hear cases in the administrative court, which deals with XJudicial Review", with a capital Xj" and a capital Xr", will also be appointed to SIAC. That would allow the Lord Chief Justice to call on 25 High Court judges and allocate them to SIAC cases as appropriate. In addition, the Lord Chief Justice and four Lords Justices will be appointed to SIAC.
	The question of the allocation of a judge to a case is never a matter for the Lord Chancellor; it is a matter for the Lord Chief Justice. Therefore, I hope that the noble and learned Lord, Lord Ackner, will be satisfied that the effect of the arrangements made between the Lord Chancellor and the Lord Chief Justice are already that the Lord Chief Justice will be in a position to allocate judges to the case and that those who have been nominated to hear SIAC cases are already nominated to hear administrative court cases.
	I am not sure whether the noble and learned Lord also had in mind the question of the appointment of the other members—I do not mean under Amendment No. 31 but simply the role of the Lord Chief Justice in relation to other members. I am grateful to the noble and learned Lord for shaking his head as I do not need to deal with the question of whether it would be appropriate for the Lord Chief Justice to be involved in those appointments. I suggest that it is not.
	The Special Immigration Appeals Commission Act 1997, which set up SIAC and which already operates in relation to cases with which SIAC deals, does not make it a requirement for SIAC appeals that the Lord Chief Justice should be involved in the way that the noble and learned Lord suggests should be the case in relation to the nomination of judges. What is more—I referred to this matter in Committee—it is possible for two cases to relate to the same individual. They may either come together in SIAC or run side by side. In those circumstances, it would be odd if there were a requirement to consult the Lord Chief Justice on the appointment in one case but not in the other. I hope that the main point will satisfy the noble and learned Lord.
	I turn to Amendment No. 31, which relates to the composition of SIAC. Noble Lords will recall that SIAC was established after the European Court of Human Rights, in the Chahal case, held that judicial review and habeas corpus were inadequate remedies to deal with cases where the Secretary of State was making a decision on whether or not someone should be deported from the country on the grounds that it was conducive to the public good; in other words, in effect, contrary to national security. We lost in that case, and I shall need to return to it.
	When, therefore, this Government proposed the establishment of SIAC, it came before Parliament, as I read the Second Reading debate in this House, with cross-party support. Schedule 1 to the 1997 Act sets out what the membership of SIAC should be. Paragraph 5 of that schedule states that SIAC will be duly constituted when it consists of three members, of whom at least one holds or has held high judicial office—that is, as the noble and learned Lord says, having been at least a High Court judge—and at least one of whom is or has been appointed as chief adjudicator under Section 57(2) of the Immigration and Asylum Act or is or has been a member of the Immigration Appeal Tribunal, qualified as mentioned in that Act. In other words, a second member must be a legally qualified member who has immigration experience through involvement in the immigration judicial and tribunal structure.
	In practice, SIAC cases to date have been heard by a panel consisting of one person from each of those two categories—a High Court judge and an immigration judge—and a third, lay member. On Second Reading of the SIAC Bill, the noble Baroness, Lady Blatch, speaking for the Opposition, said:
	XWe welcome the fact that the special immigration appeals commission will have at least one judge sitting on it, and also a member of the Immigration Appeals Tribunal or a special adjudicator. Several practitioners working in the field of immigration law have said to me that, given the increasing complexity of case work, having a specialist tribunal of this kind can only be a good thing".—[Official Report, 5/6/97; col. 737.]
	At that stage, a good model was thought to be a High Court judge, a judge with immigration experience and a third person with experience and understanding of security matters, ensuring that the tribunal had the expertise to understand and weigh the evidence.
	If the amendment were passed and two of the persons had to be High Court judges, one of the other two categories would not be represented unless we were fortunate enough to find somebody with expertise in both areas. The model has worked well so far and I do not believe that it would be an improvement to substitute for one of the persons with relevant expertise another High Court judge. While recognising the spirit in which the noble and learned Lord moved the amendment, I invite him to withdraw it.

Lord Ackner: My Lords, I thoroughly accept that the Minister has provided a satisfactory answer to Amendment No. 30 but not to the second. Under the Immigration and Asylum Act 1999, the panel is bound to have at least one chief adjudicator or a member of the SIAC because such expertise is obligatory. When it comes to high judicial office, I say that it is not a case of at least one but that there should be two. Members of the commission will have to consider whether there should be an appeal on a point of law. Under the Bill, they could be outvoted by the layman and the chief adjudicator as it is bound to be a majority decision.
	The major part of the case is likely essentially to be a legal one.

Lord Goldsmith: My Lords, perhaps the noble and learned Lord will permit me to say that the nature of the SIAC review is not legal. I entirely accept that the next stage—the Court of Appeal—would be, but I did not understand that we were discussing that part of the review.

Lord Ackner: My Lords, I refer to the Court of Appeal because the SIAC or the Court of Appeal must give leave for appeal. As matters now stand, an appeal is limited to points of law. On the issue of whether or not there should be an appeal, it is obviously desirable that there is a majority of judicial power. The layman does not seem to feature at all in the proposal. However, this matter is not one on which I wish to divide the House, so I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 31 not moved.]
	Clause 30 [Exclusion of legal proceedings]:

Lord Mayhew of Twysden: moved Amendment No. 32:
	Leave out Clause 30.

Lord Mayhew of Twysden: My Lords, I will speak also to Amendment No. 33, on which my argument will be the same.
	I reckon that there is much in the Bill that is uncongenial to all of us. The saying that needs must when the devil drives aptly encapsulates our attitude and, to be fair, that of the Government. We know that the devil has been driving. Nothing much more diabolical could possibly be imagined than the events of September 11th nor the character of the threat confronting us, so the Government tell us, here and now.
	When the Government say that, we must accept it. We do, but we must also scrutinise extremely carefully what are the needs as the Government describe them. We must do that with special care when the Government, with their disciplined majority, have rushed through the elected House, with scant debate allowed, a measure that permits the Home Secretary to order unlimited detection or indefinite detention without trial. Many say that power resembles internment. We know the arguments but whatever nomenclature one gives it, that is a stern measure indeed.
	We must examine also what are the needs to exclude judicial review. When, in Clause 30, the Government seek to exclude the well-established power of senior judges to review in the High Court the way in which the Home Secretary has acted, a complaint of irregularity having been made, our duty is much stronger.
	Are those extraordinary exclusions needed? I say Xexclusions" in the plural because Clause 31(2) contains the same exclusion in a clause that channels into the SIAC proceedings that challenge the UK's derogation from Article 5 of the European Convention on Human Rights or the designation under the Human Rights Act 1998 through the 2001 designated derogation order that reflects that derogation.
	For the defence of our country, there is no need to exclude constitutional safeguards—especially where the liberty of the individual is at stake. Such exclusion is not among the needs. One has only to recall the words of the Attorney-General on Second Reading. We had an enjoyable midnight hunt in which the Attorney-General had run elusively and with grace—but at length, he came to answer the question that I put to him of why it was necessary to exclude judicial review. After courteously apologising for not answering before, he asked,
	Xwhat value will judicial review on top of an existing judicial scrutiny provide? All it will do is add time and delay unnecessarily".—[Official Report, 27/11/01; col. 283.]
	His argument was that under the Bill, SIAC will be able to do all that the High Court can do on judicial review. My noble and learned friend Lord Donaldson of Lymington will say something about that later.
	Even if it were true that there would be no value in judicial review—and I respectfully suggest it is not true—that would not be sufficient reason to prevent a detainee from seeking to resort to the High Court for so profoundly important a remedy against the abuse of executive power, especially when his liberty was at stake. A detainee should not be obliged to go to a special commission, not a court, set up less than four years ago. It is special indeed—special in its personnel, special in its function, special in its procedures and tasked with a significantly different job.
	It is not correct to suggest that judicial review will have no value. For example, how could SIAC review its own activities, on complaint of irregularity? It could not. The noble and learned Lord the Attorney-General relies on the right of appeal to the Court of Appeal, but that is only on a point of law. Conscientious as he always is, he concedes in a letter that he recently sent to my noble friend Lady Buscombe that it is not in the case of every alleged procedural defect that an appeal will lie to the Court of Appeal. In some instances—if there is no judicial review—there will be no remedy. This matter will be dealt with more fully—and certainly with much more authority and experience—by the noble and learned Lord, Lord Donaldson of Lymington, and, no doubt, by others. Time is getting on, so I shall not duplicate the arguments.
	I conclude with three reflections. First, while any judicial review is proceeding, the detainee will remain in detention in all but the most exceptional and improbable case—or so I would judge. Secondly, the power of senior judges to review, on complaint of irregularity, whether power conferred by Parliament has been exercised with proper regularity does not undermine the parliamentary will; on the contrary, it supports it. Judges simply tell the decision-maker who has taken a wrong turning where he went wrong procedurally; they will tell him to go back to where he went wrong and to start again.
	My third point bears closely on the argument that there would be no point in judicial review and the comment about how excellent and comprehensively sufficient is the statute that set up SIAC. When SIAC was set up, there was no provision in the relevant Bill to exclude judicial review; SIAC has got on all right, and its activities have always been amenable to judicial review. Judicial review was not excluded, but it has never once been sought—we have that from the Home Secretary. The Attorney-General's anticipation of time being wasted and of delay cannot derive from any adverse experience in that regard. In truth, the experience and the record should reassure him.
	My submission is that in the Bill we should not be driven to surrender a precious safeguard against the abuse of power, especially when there is no need for it. If one did so, one could be sure that such a precedent would soon be followed because, in my experience, all departmental Ministers resent judicial review. That in itself is a good reason why it should be cherished.
	Clause 30 should be removed, as should Clause 31. I beg to move.

Lord Renton: My Lords, I hope that my noble and learned friend will clarify one point. When there has been judicial review, can the judges who heard it refer the matter back to SIAC, or is SIAC's decision simply annulled?

Lord Mayhew of Twysden: My Lords, SIAC could perfectly well refer—

Lord McIntosh of Haringey: My Lords, we are on Report and the noble and learned Lord, Lord Mayhew, will have an opportunity to respond to that point when he concludes the debate.

Lord Goodhart: My Lords, judicial review is a fundamental defence of the liberty of the subject against the oppressive actions of the executive. Therefore very strong justification indeed is necessary to exclude it.
	The most that can be said in this context is that judicial review will not often be necessary. In most cases, it is likely that an application for judicial review will be refused by the court that hears it because that court will decide that an appeal to SIAC about the Home Secretary's decision or an appeal to the Court of Appeal about SIAC's decision is the more appropriate procedure. There will be a few cases—the noble and learned Lord, Lord Donaldson of Lymington, will outline one or two examples—in which judicial review will provide relief that SIAC cannot provide. That is a strong argument for keeping judicial review. I do not believe that there is any serious argument for abolishing it. It is wholly unnecessary to exclude it and, as the noble and learned Lord, Lord Mayhew of Twysden, said, doing so will set a very bad precedent indeed. I strongly support the amendment.

Baroness Buscombe: My Lords, it gives me great pleasure to follow my noble and learned friend Lord Mayhew of Twysden and the noble Lord, Lord Goodhart. I am grateful to the noble and learned Lord the Attorney-General for writing to me in response to our concerns, which were expressed at Second Reading and in Committee, regarding the right of appeal on a point of law, and whether that right would include appeals relating to SIAC's procedures.
	I quote, with respect, what the noble and learned Lord the Attorney-General confirmed in his letter. He wrote:
	XI am satisfied that the Court of Appeal would indeed have jurisdiction to entertain an appeal on a point of law in a case where the Special Immigration Appeals Commission . . . had failed to comply with its own procedural rules".
	That is helpful so far as it goes, but the noble and learned Lord went on to say:
	XThis is not to say that an appeal will necessarily lie on a point of law in all cases where there has been an alleged procedural defect in the proceedings before SIAC. Whether the way is open to take a case to the Court of Appeal will depend on a range of factors, such as the nature and materiality of the error in question".
	The noble and learned Lord the Attorney-General is not therefore minded to accept the amendment to which I spoke in Committee; namely, Amendment No. 124. He would not do so because, in his words,
	Xto include express provision to that effect in this Bill would risk casting doubt on the operation of other statutory provisions which provide for an appeal on a point of law".
	Her Majesty's Opposition believe that, while the noble and learned Lord the Attorney-General is endeavouring to be helpful, that answer in fact weakens the Government's case for the need to exclude judicial review because of the admission that appeal on a point of law does not work universally.
	We are therefore firmly of the view that Clause 30 and Clause 31(2) should be excluded from the Bill, for all of the very cogent reasons that noble Lords have already expressed. To repeat what other noble Lords have said would be otiose. I, too, look forward to the comments of the noble and learned Lord, Lord Donaldson of Lymington.
	The proposal to exclude judicial review would set a very dangerous precedent. It is amazing to think that a Labour Government see fit to deny the proper process of law, which can call to account the decisions of the executive. Perhaps, in the scheme of things, and taking into account the debates that we have already had on this part and other parts of the Bill, we should be not surprised but saddened.

Lord Donaldson of Lymington: My Lords, I hope that noble Lords will forgive me for mentioning that I spent 26 years as a judge in the High Court or the Court of Appeal. During that time, for one reason or another—certainly when I was Master of the Rolls—and in view of the importance that I attached to judicial review, an unusually high proportion of my work was concerned with judicial review.
	As a result, I understand the principles that in fact—this is important—guide the judges. For present purposes, they are: first, that the judicial review jurisdiction will not be exercised if SIAC is equally capable of providing a remedy; and, secondly, that the merits of ministerial action are wholly irrelevant. The sole concern of judicial review, for practical purposes, is whether the action that is taken by the Secretary of State is within his authority or, as the case may be, if the action that is taken by SIAC is within its authority.
	As the noble Lord, Lord Goodhart, pointed out in an earlier debate, the two jurisdictions—of judicial review and appeal, whether or not that is limited to a point of law—are not mutually exclusive. They are complementary. As the noble Lord, Lord Lester of Herne Hill, attested, in 99 cases out of 100 the judicial review judge stands back and leaves it to the other jurisdiction if the other jurisdiction has the width of jurisdiction to deal with the matter.
	I do not know how many judicial review cases I have dealt with. Most will involve local authorities. In judicial review, I have intervened only once where another tribunal had the necessary jurisdiction to deal with the problem. I did so in exceptional circumstances; I mention it to indicate how exceptional. A police officer was disciplined by his chief constable. There was a long period—I forget how long but it was a matter of years—before the police officer was called on to answer the charge. It seemed to me and those sitting with me that on no possible view could the police officer have had a fair hearing. He could have appealed to a police appeals tribunal which would, I hope, have quashed the sentence straight away. If it had not, we would have quashed the appeal tribunal's decision. So the position was absurd. We were going to leave this unfortunate officer in doubt about his future when we could tell with absolute certainty what that future was. Therefore we said, XWe will step in and quash it". It is only in such exceptional circumstances that that can be done. I regard it as a one-off. Regrettably, I am unable to say what my total caseload was so I cannot precisely confirm the description of the noble Lord, Lord Lester, of the 1 per cent risk. The figure must be of that order.
	More importantly, I know of no judge who has ever been guided by his view of the merits of ministerial or local authority policy which he has been invited to review. Certainly I never have been. The issue is always: is the action authorised? Nothing else. That said, I understand and sympathise with the dismay of a Minister whose policy decision is quashed. He has no doubt that his policy is in the national interest. He has no doubt been advised that it is within his authority to act as he has done. Were it otherwise he would have looked for another policy. In these circumstances it must seem clear to him that an unelected judge has entered the political arena and disagreed with his policy. That is totally untrue, but I can well understand his reaction. It is not the correct conclusion. It is possible that the Minister's advisers are right. Judges do not claim infallibility. The right remedy then is to appeal. In appropriate circumstances, an appeal can be brought in very quickly.
	The problem for Ministers in accepting that an adverse judicial review decision is based upon vires rather than merit has been aggravated by the provisions of the Human Rights Act 1998 which require judges to test the limits of ministerial authority against the provisions of the Act in addition to the words in which the authority is expressed. It follows that what was once adequate authority may cease to be such, although the terms of the authority are unaltered. It may be good or bad but it is the arrival of the Act which produces that curious situation. I judge from press reports—a wrong basis from which to do anything—that the lorry case which is commented upon in the newspapers today is just such an instance. But for the Human Rights Act the judge would have had no difficulty. He thought that he was constrained to reach a different conclusion. The Home Secretary—if it is the Home Secretary—has rightly appealed and it may be that the judge was wrong. I know not.
	I have spoken of judicial review in terms which might suggest that it is something invented by judges for the discomfiture of Ministers. Not so. The jurisdiction extends to all public authorities including all tribunals and—it may surprise noble Lords—all county courts. It is a very wide jurisdiction.
	I have the greatest respect and admiration for the way in which the noble and learned Lord the Attorney-General is discharging the duties of his high office. However, when he implies that one has to choose between having a wide-ranging system of appeal from decisions of the SIAC and judicial review he is, if I may so with respect, completely mistaken. They are not alternatives. They can very reasonably be complementary to one another. With regard to the Chahal case he says that judicial review was held to be a totally inadequate remedy. So it is by itself, because it is concerned with authority not merits. One needs both. So long as the tradition—it now almost amounts to a rule of law—persists that no permission will be given for judicial review if there is a better remedy, I cannot see any particular problem.
	The noble and learned Lord says that the debate has demonstrated that there is not anything that judicial review would add to the SIAC appeal system. With great respect, he is simply wrong. It is highly unlikely that there would ever be a need to invoke judicial review but it would not be open to the SIAC to challenge the conclusiveness of a certificate by a Secretary of State under Clause 30(3). That could be challenged on judicial review if evidence was obtained that the Secretary of State, notwithstanding his certificate, had acted in reliance on some quite different matter.
	The noble and learned Lord, Lord Mayhew, has already made the point that if the SIAC strayed and erred from its own authorities, which are wide, it could not judicially review itself, nor could the Court of Appeal. That is the important point. I say that because I have had experience of this. When trying an appeal, it suddenly emerged that there was an underlying judicial review point. We were satisfied that we could not deal with it. So what were we to do? What we did—it caused some hilarity—was to invite counsel to allow two of us to sit back in our chairs and imagine that we were not there, and to apply to the third judge for permission to bring judicial review proceedings. To no one's surprise he granted that. We then moved the newly-formed judicial review proceedings into the Court of Appeal and proceeded with the two together. But we did think that it was necessary.
	I know of no case in which on an appeal you can deal with judicial review—with one exception. The noble Lord, Lord Lester, who knows about these matters in great detail, will no doubt remember it. A council tenant was given notice to quit by his landlord local authority. He said that it had no authority to give him notice to quit as a matter of statutory construction. The local authority said, XSo what? Under public law what is done by an authority stands until set aside. It has not been set aside. Therefore, he must be evicted and the appeal must be dismissed". The Court of Appeal—I was not a member of the court—made new law. It said that where under private law someone was defending his rights and for that purpose he had to impugn some action in public law, he could do so. So far as I know, that is the only exception.
	I ask myself what other objections can there be to leaving open the bare possibility of judicial review; and it is a bare possibility. That it would produce delay? That is not so. Both the High Court and the Court of Appeal can take action within hours, day or night, given a sufficient degree of urgency.
	Perhaps I may illustrate that. I began a hearing in the NIRC at 10 o'clock at night. I threatened counsel that I would sit until they dried up. They said that they would take me on. At four o'clock in the morning I gave in. But it can be done. I just mention another case. A Jehovah's Witness, a youth of 16, objected to a hospital order requiring a blood transfusion. The medical advice was that he could live for only 48 hours in the absence of a transfusion. Mr Justice Ward, as he then was, started the hearing and we were confident that he would order transfusion and that the youth and his parents would appeal. We had a panel standing by to sit all night if necessary. Miraculously, the learned judge, with incredible skill and patience, persuaded the family that to comply with the court order did not disturb their belief. Again, there will be no delay. If there were, the man would be in custody, which does not seem to me to matter a great deal.
	Then it is said that there would be leaks from the High Court. That is not so. I conducted the New Cross Building Society appeal totally in camera. Nobody knew that the appeal was taking place. We would not allow the judgment to be disclosed until there had been the opportunity of appeal to the House of Lords. In fact, the case was settled.
	Where does this leave us? If the amendment is carried it remains most unlikely that judicial review will ever be sought. If it is rejected, the message will go out loud and clear, not as the noble and learned Attorney—General believes, that judicial review is unnecessary, but that the Government are bent on having the power to operate outside the rule of law.

Lord Lester of Herne Hill: The Joint Select Committee on Human Rights said in both its reports that it was not persuaded that the conditions for a derogation had been sufficiently explained to Parliament. That is a very important matter. The noble and learned Lord, Lord Steyn, in his recent Holdsworth Lecture, had come to the same conclusion in his extra-judicial capacity.
	I mention that because the Government are now in quite serious difficulty for this reason. If a suspected terrorist takes them before the European Court of Human Rights, the starting point will be that the expert Select Committee of both Houses has twice asked Ministers to come to both Houses with sufficient evidence of emergency and of the exigencies of the situation being satisfied. It is in that context that we have to consider these amendments and whether the ouster of judicial review makes sense. The Government will need to defend themselves against criticism for having imposed a scheme of detention without trial and without effective judicial review.
	I have said it earlier this evening, but I take the view that the SIAC procedure will in almost all cases provide effective remedies as will the right of appeal on a matter of law to the Court of Appeal. However, I believe that there are two extremely strong reasons for supporting these amendments which have not yet been made. The first is that the Government have not yet introduced all the safeguards that the Select Committee advocated in its reports. Therefore, only a judicial review court might, in extreme circumstances, have to write in one or two of those safeguards.
	The second is an international political reason. The Venice Commission for Democracy, on which Professor Jeffrey Jowell QC is the British representative, has the task of spreading democratic ideas under the rule of law across the world. Professor Jowell told me that he would find it extremely difficult to explain in central and eastern Europe how the mother of democracies has ousted judicial review as well as derogating from the convention. He would have to try to explain how the SIAC procedure was sufficient.
	It is quite clear from the speeches in this House and the other place that the arguments about SIAC are complicated and are not really persuasive to those who are not expert lawyers. I therefore regard the retention of judicial review as of enormous symbolic value. I believe that sometimes the rule of law requires symbols as well as legal reality. It is for that reason, since judicial review does no harm, that I strongly support these amendments.

The Lord Bishop of Portsmouth: My Lords, I am grateful to noble and learned Lords for speaking so eloquently about judicial review. In the view of these Benches these amendments will ease the burdens on SIAC. I am particularly grateful for what the noble Lord, Lord Lester, has just said. The speeches pick up common themes which have run through debates on this Bill in your Lordships' House. They also echo some of the things which were said from these Benches last Thursday about building a proper measure of restraint into this legislation. These amendments have our support.

Lord Clinton-Davis: My Lords, I have listened very carefully to the speeches of the noble and learned Lords, Lord Mayhew and Lord Donaldson. I speak as a mere solicitor whereas they have held very high office.
	I believe that the burden rests fairly and squarely on my noble and learned friend who will reply to this debate. At the moment I am persuaded that there is no very good reason for taking the draconian steps that the Government have foreshadowed in this debate. It is with enormous sadness that I say this. I have fought for civil liberties throughout my life as a solicitor and as a member of a very proud profession. I am bound to say that at the moment I see no reason to exclude the remedy of judicial review in the final analysis.
	I face this evening with the prospect of voting with the Conservatives and, I suppose, with the Liberal Democrats, against my own Government. I beg my noble and learned friend to sympathise with the problem which I face. It gives me no pleasure at all to note that they are prepared to disregard, as I see it, a very important remedy which, in the final analysis, may be important for the individual. But I would rather stand by the proposition that the Government are wrong than to sully what I have stood for all these years.
	When I ask my noble and learned friend to see reason on this point as I see it, I beg him to be as persuasive as he can with his colleagues. We have not yet reached the end of the day. There is still some prospect of change. I hope that the whole House will see that prospect as all important. In my view there is no need to abolish judicial review. As I say, the burden rests very heavily on my noble and learned friend to say that I am absolutely wrong about that. I am not being fanciful; I am being commonsensical. It is important that, when everything is under threat, we should stand firmly by the principles that are all important. My sole concern is with the individual who may be affected. The numbers involved may be few, but some people will be affected by this and they should not be denied the absolute remedy that they seek.

Lord St John of Fawsley: My Lords, I shall detain the House only a merest minute. This is an issue of the greatest importance, complexity and difficulty. I have listened to every word of this debate. The way in which this serious matter has been discussed, including the expertise of so many noble and learned Lords, fully justifies the existence of this House. I was particularly impressed by the speech of the noble and learned Lord, Lord Donaldson, and by the speech of the noble Lord, Lord Clinton-Davis.
	I say to the noble and learned Lord the Attorney-General that if this time-honoured, legal remedy is to be done away with in this case, the burden of proof rests firmly upon the Government. Noble Lords have a dilemma because one does not want to give comfort to terrorists, but at the same time we must defend our liberties. Otherwise the terrorists have won. It is really up to the Attorney-General. If he wants the support of those who have open minds on this subject, he must convince your Lordships, including myself, that this is necessary and that there will not be inordinate delays if this remedy were left as it is. That is the crux of the problem.

Lord Corbett of Castle Vale: My Lords, I shall not detain the House for long, but I cannot sit here in silence and not voice my concerns about what I regard as the outrage that this Government seek to perpetrate. Under this Bill some awesome powers are to be given to the Home Secretary. I understand that this Bill is a response to the awful events of 11th September, but as my noble and learned friend has been told by your Lordships, SIAC was not set up for that purpose. When it was set up, the Government did not seek to exclude judicial review following its decisions. In a sense this is a double whammy. The Government propose to give powers to SIAC, which they did not intend to do originally, and under these proposals they seek to withdraw the judicial review route for those who feel offended by the decisions made by SIAC.
	At Second Reading the Attorney-General spent a long time—for which your Lordships' House was grateful—arguing two points on judicial review. One was, as the noble and learned Lord, Lord Donaldson, said, that the SIAC procedure was a straight alternative to judicial review. A little later he said that in many respects SIAC was better in these particular circumstances. The noble and learned Lord, Lord Donaldson, has taken leave to disagree with the Attorney-General on that matter.
	I put this point to the Attorney-General as a layman and not as a lawyer. If, as he argued, there is not that much difference between the rights of judicial review in these circumstances and the SIAC procedure, perhaps he will listen to the voices from around your Lordships' House on this point and respond by agreeing, even at this late stage, that it would be right to concede that judicial review should be available.
	After the outrage of 11th September, the way to defend democracy is not to dismantle it; it is to strengthen it. Otherwise we shall have the ridiculous and ludicrous position of the Mother of Parliaments being asked to put its name to achieving some of the aims of those who carried out the events of 11th September.

Lord Thomas of Gresford: My Lords, the prerogative writs of habeas corpus, certiorari and mandamus have a lengthy history which, as my noble friend Lord Russell pointed out in Committee, precede Parliament. They are prerogative writs because the individual is able to utilise the power of the Crown to hold a Minister to account and to supervise the way in which inferior tribunals work.
	The Government are happy enough to use the prerogative for themselves. They wage war in the name of the Crown. They use the prerogative over and over again to issue orders and directions. Those ancient writs are the one circumstance in which the individual can use the Crown against the Government and they should be maintained.

Lord Goldsmith: My Lords, we have had many debates on this topic. It was debated at Second Reading when I tried to answer the questions posed by noble Lords. I am grateful that noble Lords have acknowledged that. It was also debated in Committee. In normal circumstances, after such extensive airing of the arguments, I would not trouble your Lordships by repeating them, but I have been specifically invited by my noble friend Lord Clinton-Davis and by the noble Lord, Lord St John of Fawsley, to seek to persuade your Lordships why there is still much misunderstanding of what the Government seek to do. I shall take this opportunity to bring together the various points that I have made previously to explain why the Government remain of the view that the provisions in Clauses 30 and 31 are worth their place in this Bill.
	This debate started in stark terms. I hope that it will be acknowledged that the debate has moved on. I hope that the noble Lord, Lord Thomas of Gresford, will forgive me for reminding the House that at Second Reading he said that the detainee has no opportunity to challenge the information that has been laid against him. That statement is fundamentally wrong and is critical to understanding the provisions in the Bill. It is not the case that a person who is detained has no avenue of redress.
	As this debate concludes, I hope that it will be accepted and recognised overtly by noble Lords that this debate is not about the abolition of judicial review; that it is not about the setting of precedents in relation to other government departments; but that it is about the appropriate judicial review—I do not hesitate to use those words and I shall use them time and again—for such decisions. The appropriate judicial review for these proceedings is the SIAC route.
	XJudicial Review", with a capital Xj" and a capital Xr", has a specific meaning in English law. It is a form of scrutiny by judges which, as the noble and learned Lord, Lord Donaldson, to whose experience I bow, has so clearly explained, is not a thorough-going review of the merits of the decision, but a limited form of judicial scrutiny. I want to spend a moment not just on that point, which is one of the reasons why XJudicial Review" with a capital Xj" and a capital Xr" is not the right route, but also on a fundamental point which needs to be understood fully in order to see why SIAC is the right route.
	The cases concerned with this part of the Bill deal with a limited but critical category of people. I do not say that they are limited in order to underestimate the importance of what is being done. We are dealing with people who have no right to be in this country and whom the Home Secretary has the right to deport, but for one fact: he and the Government are too concerned about human rights to be prepared to send them back to a place where they may be shot or executed or tortured.
	Noble Lords opposite have taken a different view. The party opposite has suggested that we should send these people back to their deaths. That is not something that we are prepared to do.

Baroness Buscombe: My Lords, I simply want to say that we have never said that.

Lord Goldsmith: My Lords, I have absolutely no desire to be disagreeable today. The fact is that at Second Reading the point put forward, which has been made elsewhere by the main opposition party, was that the route the Government should take is not to detain those that we cannot deport, but to get them out of the country by withdrawing from the convention on human rights. Then they would rejoin but exclude Article 3. Article 3 is the obligation that we want to hold on to. It precludes us from sending people to places where they may be killed, executed or subjected to torture. That is not something we are prepared to do. So we are talking about people—

Lord Lester of Herne Hill: My Lords, I am sure that the Attorney-General will agree with me that that was never the position of the Liberal Democrats.

Lord Goldsmith: My Lords, that is absolutely right. I commend the Liberal Democrats on that.

Baroness Buscombe: My Lords, we made that point on the understanding that there would be a prescribed list of countries which would be kept by the Home Secretary. I made that very clear at Second Reading.

Lord Goldsmith: My Lords, the record is the record and noble Lords can consult it. The fact is that, prescribed list or no, as the noble Baroness suggests, there are people in this country who there are reasonable grounds to believe are a threat to our national security, who are international terrorists, and who have no right to be here; but we will not and cannot deport them because there is no safe place to send them. That is the category of person with whom we are concerned. The question is: what will be the judicial scrutiny of the decision made by the Home Secretary to this limited but still important category of people who fit into that description? I give way to the noble Earl.

Earl Russell: My Lords, I am most grateful. Can the noble and learned Lord qualify or reconsider something that he said a moment ago? He said that we are dealing with people who have no right to be in this country. In many cases that may be so. I am aware of Section 33(2) of the UN convention. But since SIAC cannot examine the asylum claim, it cannot judge the proportionality of the certificate.
	The noble and learned Lord may have seen in last Sunday's Observer the report of members of the Zimbabwe opposition being returned to Zimbabwe and denied asylum. He may be aware that Mr Mugabe has a somewhat unusual definition of Xterrorists". One would like to be certain that should any of these enter into a certificate they could be checked.

Lord Goldsmith: My Lords, the Government have made their position very clear. That goes for those covered by the later clauses in the Bill, which we are not debating with this amendment. There are two points. The first is that the only category of persons to whom the detention powers relate would be those in respect of whom valid deportation orders have been made but we cannot deport them because of a practical problem, or because it would mean sending them back to a country where they would not be safe.
	That is true—I say to the noble Earl, Lord Russell—in relation to the later clauses also where certain people, in accordance with the Geneva Convention, are not entitled to asylum status. We will still not send them back if they cannot be sent to a safe place.

Lord Avebury: My Lords, does the noble and learned Lord think that people who are sent back to Zimbabwe are immune from torture and execution?

Lord Goldsmith: My Lords, I have visited that country. That is not the issue today, with respect to the noble Lord, Lord Avebury.
	There is already a power in relation to the deportation order, which will continue to exist. But that can be challenged. This provision does not affect that. That power exists. There has to be a deportation order, which is itself subject to judicial scrutiny and appeals. I recognise that there are occasions where someone may say, XGoing back to this place is not safe for me" and the Government take a different view. That is an issue that can be determined by the Immigration Appeal Tribunal or by SIAC.
	The problem that arises is that we are dealing with a category of persons who are believed to be international terrorists and a threat to national security. The strong likelihood is that the key evidence which supports that view will be sensitive intelligence information. That is information which has been obtained by undercover sources, by intercept communications and by other covert methods which have been employed in order to protect the security and the people of this country.
	The Secretary of State wants to make a decision to grant a certificate on the basis of that evidence. We could take two views in relation to what we then do. We could say, because it is sensitive intelligence information, that we do not want anyone to see it; therefore, we shall not allow anyone to review it and the Secretary of State's decision will stand. That is not the route that the Government have taken. We want that evidence to be reviewed by a judicial body. However, we cannot have it reviewed by the traditional, classic judicial bodies because there is no procedure under which that sensitive security information can be protected.
	Why not? The noble and learned Lord, Lord Donaldson of Lymington, referred to a case. Of course there are cases where hearings take place in camera. But they take place in camera—I am sure that the noble and learned Lord will confirm—with the applicant present and able to hear all the evidence.
	We are concerned with a situation—I gave the example in Committee and I shall weary your Lordships by repeating it on one further occasion—where this person is suspected of being an international terrorist because of a conversation which took place on, say, 24th June. We know about that because the source was a deep cover intelligence officer masquerading as one of these people. If we say to the applicant, XThe reason that we believe that you are an international terrorist is because on 24th June you said this", that immediately gives the game away. It threatens the life of the source; it compromises our national security; and it prevents that person from continuing to protect each and every one of us against a further threat.
	SIAC was invented because our existing XJudicial Review" with a capital Xj" and a capital Xr" is inadequate to deal with that situation. That is why we lost the Chahal case. We cannot show the information to the traditional standard court because that court has no method by which it can examine that information without also revealing it to the individual.
	SIAC is a body headed by a judge, a judge who sits in the judicial review court. I have made that point before. This is a judge who is used to, equipped for and experienced in judicial review. There is that judge, another judge experienced in immigration matters and a lay person. One can then say, XWe now have a procedure which can look at this sensitive information. We will give you all this information on which the Secretary of State relies. You can review it all". The judicial review court could not do that. We must protect the position of the applicant. How will his interests be represented? It is important that, from his point of view, the information is challenged where it can be. We cannot tell him that that conversation took place on 24th June, for the reason that I have given. What we can do—this is what the SIAC procedure does—is instruct an experienced barrister, whose job it is to represent the interests of the appellant, to cross-examine the witnesses and to see all the information. In that way, we provide a means by which the sensitive intelligence information can be reviewed judicially.

Lord Donaldson of Lymington: My Lords—

Lord Thomas of Gresford: My Lords—

Lord Donaldson of Lymington: My Lords, as the noble and learned Lord was kind enough to summon me by name to answer this point, perhaps I may be allowed to do so, despite the rules—with the leave of the House.
	The High Court—and the Court of Appeal—has inherent jurisdiction to make any rules that it likes, or, rather, that it thinks necessary, for the purposes of justice. It could therefore adopt the whole of the SIAC rules—and I would expect it to do so. If I had not passed my sell-by date and was still there, I would certainly have arranged for that to happen. That is perfectly open to it. It can go further, if anyone wants it to, but the SIAC rules would be enough for the Attorney-General's purpose.

Lord Goldsmith: My Lords, before the noble Lord, Lord Thomas of Gresford, rises, may I tell the noble and learned Lord, Lord Donaldson of Lymington, that I am grateful for his intervention. The body that we would be left with would be the SIAC. The rules would be that there would be a judge, ability to review the information, and opportunity for the appellant's interests to be represented by counsel produced to examine the material. That is fundamental. There would be a special advocate—in the extraordinary situation of a court considering information that one of the parties could not look at, that would have to be done by way of a special advocate. That would be the SIAC.

Lord Thomas of Gresford: My Lords, will the noble and learned Lord kindly explain what is the problem with having a co-existing judicial review with SIAC? That is the key question.

Lord Goldsmith: My Lords, because judicial review could not do what we want it to do. It could not review the very evidence on the basis of which the order is made.
	In Chahal, there was an attempt at judicial review. The gentleman concerned had been detained for a period—a long period, as it happens. He had gone for judicial review, but the judicial review court—I hope that I am correct; the noble Lord, Lord Lester of Herne Hill, will correct me if I am wrong—said the following. XWe cannot look at the information on the basis of which the Secretary of State has formed the view that you are a security risk. Therefore we have to decline judicial review." The European Court of Human Rights judgment said that,
	Xthe availability of judicial review and habeas corpus to review the decision to detain Mr Chahal before the domestic courts did not satisfy the requirements of the European Commission on Human Rights",
	because it did not provide a fair trial.

Lord Lester of Herne Hill: My Lords, I entirely agree with what the Attorney-General has said. What I do not understand is what harm it does to retain judicial review for the one in 100—perhaps one in 1,000—cases in which someone seeks to challenge something and the SIAC has no jurisdiction.

Lord Goldsmith: My Lords, I hope that the noble Lord will permit me to reach that point, because I should like first to finish what I was saying on my first point. Despite what was said in Committee, it is still being suggested—unfairly, I respectfully submit—that what is being proposed by having the SIAC review in some way prevents judicial review of the Secretary of State's decision.
	Despite what some noble and learned Lords have said, I stand absolutely unrepentant. Let me summarise the ways in which SIAC provides concrete advantages that judicial review cannot. First, it can have access to all the information that the Secretary of State has; judicial review cannot. There is the special advocate arrangement, under which that evidence can be tested in the interests of the detainee. That is a critical safeguard—as I hope that noble Lords will agree—that the judicial review route does not provide.
	Secondly, the SIAC will be able to take account of information that comes to light after the Secretary of State issues his certificate. As the noble and learned Lord, Lord Donaldson of Lymington, said, judicial review is not concerned with the merits; it is concerned with the authorisation at the time the decision was made. The Bill is clear. The SIAC will be not only asked but required to consider material at the date of the hearing. Judicial review does not do that.
	Thirdly, the SIAC contains a range of expertise—specialist immigration and security information—that a judicial review tribunal would not normally have. It will have a High Court judge.

Lord Clinton-Davis: My Lords, why can we not have judicial review as a long stop?

Lord Goldsmith: I am coming to that second point. The first point is that it is so unfair to criticise the Government for proposing detention without trial and for not allowing judicial review and scrutiny when what we want is a procedure introduced precisely to deal with the problem that will enable a full review of the information.
	What is it that that judicial review would add? Let it be accepted—I hope that it is throughout the House—that SIAC will be a much better method of reviewing such decisions than ever would be XJudicial Review", with a capital Xj" and a capital Xr". As I say, your Lordships do not have to take our word for that; that is what the European Court of Human Rights said. As the noble Lord, Lord Lester of Herne Hill, said, the SIAC procedure was introduced because it was argued for in the Chahal case by Amnesty, the AIRE Centre and the Joint Council for the Welfare of Immigrants. It has subsequently been referred to with approval by the ECHR. In what circumstances would judicial review apply where SIAC does not?
	One point that has been raised today with which I want to deal immediately concerns the letter that I sent to the noble Baroness, Lady Buscombe, following her request. I am grateful that she acknowledged that my letter was intended to be helpful. She had raised the question: will there be an appeal to the Court of Appeal on a point of law where there is a procedural irregularity? First, I said that in my view, the better view was that there would. She asked for clarification; I confirmed, unequivocally:
	XI am satisfied that the Court of Appeal would indeed have jurisdiction to entertain an appeal on a point of law in a case where the Special Immigration Appeals Commission had failed to comply with its own procedural rules".
	That is what happens with employment tribunals, for example. There is only an appeal on a point of law to the employment appeal tribunal, but if there is a procedural irregularity, that can be a point of law that gives an appeal. I went on to say, and in the light of the debate that then took place perhaps I should have thought more carefully about one of my words:
	XThis is not to say that an appeal will necessarily lie on a point of law in all cases where there has been an alleged procedural defect in the proceedings before SIAC. Whether the way is open to take a case will depend on a range of factors, such as the nature and materiality of the error in question".
	I intended by that to say, simply, that there will be cases of procedural irregularities that are so immaterial that no appeal would be granted. Rather than say that no appeal will lie on a point of law, what I meant and should have said was that no appeal will succeed on a point of law. That is all that I meant, and I hope that that clarification helps the noble Baroness.
	Every noble Lord who has spoken has said that in 99 cases out of 100, SIAC would be involved. I suggest that no realistic example has been given of a case where judicial review would add something that SIAC does not have.
	Perhaps I may remind noble Lords of two points. First, there is an appeal from the SIAC to the Court of Appeal. It is on a point of law, but it is an important appeal. And of course there is an appeal from the Court of Appeal to the Judicial Committee of this House. In those circumstances, is it appropriate that there should be a judicial review of the SIAC? Would it not make more sense that if there were to be another judge looking at what the SIAC did, if that was the point, it was not a judge of the same level—that is, another High Court judge—but the Court of Appeal? That safeguard exists.
	Secondly, the noble and learned Lord, Lord Donaldson, referred to Clause 30(3). That is the only example put forward by noble Lords in which there might be a judicial review where SIAC would not apply. It provides that:
	XA certificate of the Secretary of State that specified action is taken in reliance on section 22 or 23 shall be conclusive of the matter certified".
	The absence of judicial review in relation to that does not create a problem because if the Secretary of State issues a certificate under Section 21—and that is the key to these powers—it is subject to review by the SIAC. If the SIAC cancels the certificate, the Secretary of State can do no more. He cannot move on to Sections 22 and 23. Therefore, the key point is the certificate which is issued by the Secretary of State. It is the reasonable belief that the person is a threat to national security—a reasonable suspicion that that person is an international terrorist—and that is subject to the SIAC review. The action or the deportation order is subject to appeal under the existing immigration law.

Lord Brittan of Spennithorne: My Lords, will the noble and learned Lord explain why, if the system of SIAC is so comprehensive and able to deal with everything and if a judicial review will not in practice lie or ever be used, it is necessary to remove what is a hallowed procedure and is part of our constitution? Is it just tidy-mindedness or is there some other motive behind it? What is sauce for the goose is sauce for the gander. If there is no point in judicial review, why is there any point in removing judicial review?

Lord Goldsmith: My Lords, I shall answer the noble Lord's question, but this Government have introduced something which the previous Conservative government did not; that is, a procedure, SIAC, under which a review of the evidence can take place. There are many examples of specialist courts where the view has been taken that that is the route by which certain matters should be dealt with.
	I mentioned on a previous occasion the Bill of Rights, the British Nationality Act and the RIPA, but I could have mentioned the Supreme Court Act 1981. That provides in Section 28 that certain decisions of the Crown Court are not subject to judicial review. The procedure is not such an unusual event; this is not an abolition of judicial review. It is a recognition that judicial review and habeas corpus provisions do not provide an adequate remedy. I say with all respect to the noble and learned Lord, Lord Mayhew, that the procedure is not a precedent for other departments because it does not take away judicial review of executive decision. It puts in place a different judicial scrutiny mechanism.
	The inclusion of judicial review as well would merely create confusion about the routes of challenge which are available and cause delay and unnecessary expense. I would ask noble Lords to bear in mind the following. It is often said that one cannot put a price tag on justice, but one cannot use that philosophy to justify the unproductive use of people's time which does not promote justice in any way. The opportunity cost principle applies to all walks of life, including the law. And if the lawyers and the courts are tied up in unnecessary judicial review applications, they cannot be doing other things which are more beneficial to the cause of justice.
	I am as firm a supporter of judicial review as other Members of this House.

Noble Lords: Oh!

Lord Goldsmith: My Lords, I am sorry that noble Lords find that an amusing remark because it was not intended to be. It was intended to be a plain statement of the fact. The support stems from the benefit which judicial review provides in overseeing the actions of public officials. I fully accept that in many areas judicial review has a vital role to play. I would not disagree in any way whatever with the noble Lords who have spoken about that. But where there is an area in which judicial oversight—judicial review with a small Xj" and a small Xr"—can be better provided, with more safeguards to the other party, the detainee, I say that that is a better and more logical route to go down.
	The Government have produced an alternative which is a strong and robust route for judicial scrutiny. It was promoted by organisations which have an interest in the safeguards for individuals. It was encouraged by the European Court of Human Rights and it derives from the Canadian model which was before that court. I note with considerable interest—and I invite noble Lords to consider this—that although the Joint Committee on Human Rights, for which I have great respect, produced two reports in which it made several criticisms of the Government—I do not say that I accept them for a moment—it has not included the criticism that the SIAC route is inappropriate. Quite the contrary. As I read the report, it accepts that the SIAC route is appropriate.
	The only point that is left is the symbol. If noble Lords would recognise, as I earnestly urge them to do, that the SIAC route is judicial review—it is strong and robust judicial scrutiny—no bad symbol is being sent out at all. There is a symbol that we want the Secretary of State's decision to be fully reviewed by a judicial body which is able to consider the evidence and all the evidence. For those reasons, I invite noble Lords not to press their opposition to the clause standing part.
	Perhaps I may say briefly that Amendment No. 33 deals with the derogation issue. I should have dealt with that matter earlier. In order for any court to determine whether or not the derogation is appropriate, it will be necessary for that court to see and consider the intelligence information which is in the possession of the Government indicating what is the public emergency. Only the SIAC will be in a position to do that and that is why it is the appropriate court also to consider that issue.

Lord Mayhew of Twysden: My Lords, I am grateful to all noble Lords who have spoken on these two amendments. I am especially grateful to the Attorney-General for the care and patience with which he has dealt with the debate.
	I am afraid that when I first read Clause 30 I said to myself, XAh, here is an example of putting in something which really cannot be defended and in due course it will be conceded. That will help the passage of the Bill". However, that has not happened.
	The arguments are well and clearly exposed before the House. As was said by the noble and learned Lord, Lord Donaldson, regarding the sensitivity of information, it is perfectly possible for rules to be made which will provide the same protection to sensitive intelligence information as applies at the moment in the SIAC.
	The problem facing the Attorney-General has been this—

Viscount Bledisloe: My Lords, will the noble and learned Lord give way? The noble and learned Lord, Lord Donaldson, said that one could exclude the applicant. Could one also refuse to allow him to have counsel of his choice because one thought that the counsel of his choice was inappropriate and would himself leak the information?

Lord Mayhew of Twysden: My Lords, I do not enter into the merits. All I say is that the mechanism is available. The trouble that the Attorney faced was that the more he laboured with great skill to show the perfection of the SIAC procedure the harder it was to explain why so many people would apparently go down the other route that it would be a waste of time, resources and everything else. I believe that the issues are clearly before noble Lords and I invite the House to express its opinion.

On Question, Whether the said amendment (No. 32) shall be agreed to?
	Their Lordships divided: Contents, 191; Not-Contents, 117.

Resolved in the affirmative, and amendment agreed to accordingly.
	Clause 31 [Legal proceedings: derogation]:

Lord Donaldson of Lymington: moved Amendment No. 33:
	Page 16, line 21, leave out subsection (2).

Lord Donaldson of Lymington: My Lords, this amendment raises precisely the same question as that raised by the noble Lord, Lord Brittan; that is, why take it out when it does not matter? I beg to move.

On Question, Whether the said amendment (No. 33) shall be agreed to?
	Their Lordships divided: Contents, 181; Not-Contents, 110.

Resolved in the affirmative, and amendment agreed to accordingly.

Lord Davies of Oldham: My Lords, I beg to move that consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage begin again not before 9.22 p.m.

Moved accordingly, and, on Question, Motion agreed to.

Local Government Commission for England (Transfer of Functions) Order 2001

Lord Filkin: rose to move, That the draft order laid before the House on 14th November be approved [10th Report from the Joint Committee].

Lord Filkin: My Lords, during the debates on the Political Parties, Elections and Referendums Act 2000, the Government made it clear that they would confer responsibility for local government electoral arrangements—the boundaries of electoral areas and the number of councillors—on the Electoral Commission. This order achieves that by transferring all the current functions of the Local Government Commission to the Electoral Commission and by giving to it the Secretary of State's powers to implement recommendations relating to electoral arrangements.
	Transferring these functions to the Electoral Commission is part of our reform and modernisation of the democratic framework of this country and will contribute to strengthening public trust and confidence in electoral arrangements by taking decisions on such issues as the numbers and boundaries of electoral divisions and the number of councillors entirely out of the political arena.
	The current functions of the Local Government Commission also include making recommendations about administrative boundaries and structure. We are also transferring these functions, along with the Local Government Commission's staff and assets. The House will wish to note, however, that we have put in place arrangements that recognise the Electoral Commission's independence by removing the Secretary of State's powers of direction. Instead, the order allows the Secretary of State to request the Electoral Commission to make recommendations on boundary and structure issues. It will remain the Secretary of State's responsibility to implement such changes, as now, through orders subject to parliamentary approval.
	In conclusion, the order will mark another step in our reform of the electoral and democratic machinery in this country, bringing greater transparency and accountability to the review of electoral arrangements. I commend the order to the House.
	Moved, That the draft order laid before the House on 14th November be approved [10th Report from the Joint Committee].—(Lord Filkin.)

Baroness Hanham: My Lords, while there is no opposition from these Benches to the order, I should like to ask the Minister a couple of questions in relation to the cost of the new arrangements.
	Have the savings which are likely to be derived as a result of the proposed merger of the Local Government Commission and the Parliamentary Boundary Commission been identified? If so, what are they?
	Section 13 of the Political Parties, Elections and Referendums Act 2000 gives the commission powers to promote public awareness of the institutions of the European Union. It is a curious section which has the potential to be very costly if either the Government or the commission itself require to take up the whole scale of publicity campaigns, of whatever nature, to do with European institutions.
	In the light of that and my previous question, can the Minister give the budget which has been agreed as being appropriate for the first year of the Electoral Commission? Can he also indicate what cost savings are likely to arise as a result of the subsequent merger of the two commissions under one roof? I say Xunder one roof" advisedly because I hope that they will be brought together physically as well as metaphorically. Will the Minister confirm that the budget responsibilities for the commission will be borne by the Speaker's Committee? Can he give details of the budget which that committee has agreed for the year 2002-03?

Baroness Hamwee: My Lords, we support the order. Indeed, we warmly welcome it. I am not sure whether I should declare an interest as a member of the London Assembly, which falls within the order, but, as I am a London-wide member—and, happily, I do not think a change of boundary for the whole of London is in prospect—perhaps it is only a very small interest.
	We are aware that turn-out is of particular concern to the Electoral Commission. No doubt that will be central to its views on appropriate boundaries. At London borough level, I used to represent a ward which included parts of three different communities. That led to enormous confusion, not least as to why the boundary of the ward was in one case a railway and in the others went down the middle of residential roads. There seems to be little logic in people living in one polling district and identifying with not only a different community but with a different borough. Artificial boundaries do not promote identity with an electoral area. I am sure that the Electoral Commission will have this very much in mind.
	We support, too, the integration of boundary decisions at all levels to help reduce confusion. It is not too clear why, for instance, you might be voting in a ward in a part of one parliamentary constituency when you identify with and live in what you regard as a neighbouring borough.
	I was a little confused by a comment made by the Minister in another place in the Standing Committee on Delegated Legislation. He said:
	XThose decisions will be placed squarely in the hands of an independent commission"—
	and then rather hurriedly said,
	Xwhich is not to say that in the past decisions have been made other than on the basis of objective recommendations by independent people".
	If the noble Lord has anything to add to that to confirm the commission's complete independence and transparency, we shall be glad to hear it. We support the order.

Baroness Hanham: My Lords, before the Minister rises to reply, may I do what I should have done and declare an interest as a member of a local authority? It is becoming very boring, but I believe that I should keep saying it.

Lord Filkin: My Lords, I shall address, first, the two questions of the noble Baroness, Lady Hanham. This issue was considered in some detail in the Standing Committee in another place. It flows from old thinking about the nature of the Electoral Commission and the nature of the Local Government Commission itself. The Electoral Commission, which, under this order, is taking over the functions of the Local Government Commission, will no longer be the creature of my right honourable friend the Secretary of State for Transport, Local Government and the Regions. It is outwith his control and his power. He will no longer have any responsibility for its budget. It operates completely independently from him, and it reaches its conclusions on electoral arrangements without in any way going near him.
	For those reasons, the budget for the Electoral Commission, including the budgets necessary to support the work of the Local Government Commission, which is being transferred into it, cannot be part of the responsibility of the Secretary of State for fairly obvious reasons, in that he must have no influence over it. That is why, if I understand it correctly, the original 2000 Act placed the responsibility for the budget firmly on the Speaker's Committee. As I understand it, as yet, the Electoral Commission has not submitted its budget to the Speaker's Committee. I should expect that it would do so—and this is speculation—shortly after the order is passed so that it can put a composite budget for 2002 before the Speaker's Committee. It is then that we shall know the proposed budget for the commission for 2002-03.
	Clearly, it is not a rubber stamp. The Speaker's Committee must then inspect the budget, and has powers to change or vary it as it thinks appropriate before it is affirmed in either its original or its modified form. Therefore, it is not a matter of truculence on my part. It is not possible for me—nor would it be right even if knew what was being proposed—for that to be done. It is a matter for the Speaker's Committee.
	The noble Baroness, Lady Hamwee, asked about the turnout in local government elections. I share her view that these are strong concerns of the Electoral Commission. We have already seen its report on the general election, which many noble Lords have read with some interest. I very much hope that we shall see a similar focus on what the commission can do, along with many others, to raise turnout in local government elections. I also share the noble Baroness's view that seeking to make electoral arrangements reflect natural communities, so far as one can grasp such slippery concepts, is highly desirable—as I believe the commission is charged. It is not meant merely to take an arithmetic approach, but to look at the communities as well.
	It was perhaps a teasing question as to whether my honourable friend in another place had implied that the independence of the commission should not be seen to reflect on past political decisions in these matters. I am sure that he was probably referring to the fact that, while all politicians, one trusts, have always acted honourably in these matters, the issue is trying to convince the public that there is no trace of political interference. That is why there is such a distance in terms of the responsibilities and the budget itself.
	I trust that my remarks have addressed satisfactorily the questions raised. I trust also that there will be a continuation of cross-party support for what we believe to be a strengthening of decisions on electoral arrangements and that the Electoral Commission will move forward with power and skill in addressing these difficult roles. I commend the order to the House.

On Question, Motion agreed to.

Regulatory Reform (Special Occasions Licensing) Order 2001

Baroness Blackstone: rose to move, That the draft order laid before the House on 16th November be approved [5th Report from the Regulatory Reform Committee].

Baroness Blackstone: My Lords, if approved, this order would be the first ever regulatory reform order to be made under the Regulatory Reform Act 2001, which received Royal Assent shortly before the general election this year. We therefore have an opportunity to make a little history.
	The order is designed to extend permitted licensing hours from normal closing time on New Year's Eve this year until 11 a.m. on New Year's Day 2002. By adding to the existing hours, this would in effect allow on-licensed premises and registered members' clubs to open continuously—if they wish to do so—from 11 a.m. on New Year's Eve until 11 p.m. on New Year's Day 2002. This is a period of 36 hours.
	XOn-licensed premises" include, for example, pubs, nightclubs and restaurants. XRegistered members' clubs" are non-profit-making clubs such as the Royal British Legion, working men's clubs, and Labour, Conservative and Liberal clubs, which often run special events on New Year's Eve.
	In addition, the order would permit the police, local authorities and any local resident to apply to the licensing justices for a restriction order limiting the additional hours on grounds of likely disorder or disturbance. The final decision on whether to grant such a restriction order would be for the justices after considering the evidence.
	The tourism industry, which includes the hospitality industry, has had a dreadful year. The effects of foot and mouth and the awful events on September 11th have been immensely damaging. The order is an opportunity to give the hospitality industry a small boost at a very difficult time. Ordinary people, too, will benefit by having the opportunity to enjoy themselves when and where they want on a night of national celebration.
	I want to thank the members of the Delegated Powers and Regulatory Reform Committee of this House, who have spent considerable time scrutinising the order and who have worked closely with the Government to agree appropriate terms for it.
	The committee had concerns about the timing of the order and about the legal interpretation of the Regulatory Reform Act 2001. In its report of 21st November to the House, the committee explained its reluctance to approve this order if the effects of Section 1(4) of the Regulatory Reform Act 2001 would have subsequently prevented it approving an order in respect of licensing hours at the Golden Jubilee. Section 1(4) is referred to in the reports as Xthe two-year rule" and it prohibits an amendment to the same provision in primary legislation twice within two years. However, following advice from Treasury Counsel, the committee has noted in its report that:
	XThe restrictions currently applying to the sale of alcohol on all New Year's Eves and during the Golden Jubilee have been transferred from Part III of the Licensing Act 1964 to this Order. These provisions can subsequently be amended without falling foul of the 'two year rule' contained in the Regulatory Reform Act 2001".
	In giving its approval, the committee added, however, that regulatory reform proposals should not normally be drafted in this way to circumvent the provisions of Section 1(4). I can give the House the assurance that we shall comply with the committee's view.
	The timing of the order was also an issue of concern for the parliamentary committees concerned with regulatory reform because of the limited time that magistrates would have to process applications for restriction orders before New Year's Eve. The committees, however, accepted the assurances given by the Magistrates' Association in a letter to the House of Commons committee. It said that magistrates would still support the order becoming law as late as mid-December, and that licensing justices were willing and able to deal with any applications for restriction orders in the time available.
	The timing of the order provides no time for licensees to appeal against a restriction order imposed by magistrates, and the appeal provisions were removed from the order on grounds of practicality. However, I can assure the House that future orders—for example, the one concerning the Golden Jubilee—will restore these provisions.
	Finally, I can confirm to the House that the terms of the order are fully compatible with the European Convention on Human Rights. The order was approved in another place on 28th November and I commend it to the House. I beg to move.
	Moved, That the draft order laid before the House on 16th November be approved [5th Report from the Regulatory Reform Committee].—(Baroness Blackstone.)

Baroness Anelay of St Johns: My Lords, I thank the Minister for that explanation. Perhaps I may begin, as ever, by reminding the House of my unpaid interest as patron of the Restaurant Association of Great Britain. The association will benefit from the making of this order.
	The Minister rightly pointed out that we are making a little history tonight. I hope that on future occasions orders will not run up against some of the time constraints and the redrafting that has been required on this occasion—although it might be argued that the super-affirmative process that has been introduced by this system provides a greater opportunity for proper consideration and thereby the redrafting of orders. As a result of that it behoves the Government even more to think of the time limits with regard to the laying of orders.
	I make it clear from the start that I support the making of the order. I certainly take full account of the points made by the Select Committee in its fourth report which were very firmly in favour of the order being made. I shall not take up the time of the House by referring to those points in detail. The Minister was absolutely right to add to that list the importance of the order to the tourism industry. As the Minister said, it has suffered two dreadful blows this year. The order will assist the industry, one hopes, to have a slightly better level of business than otherwise would be the case and indeed should reduce the regulatory cost burden that otherwise it would have faced if it had to make applications for orders. Indeed, David Quarmby of the British Tourist Authority pointed out that the order will bring us into line with our European competitors and provide yet another reason for people to enjoy the New Year in Britain.
	I had concerns before I came to the House on three matters. I therefore gave notice to the Minister's office of those three matters. The first was the issue of the two-year rule. The second was the late coming into effect of the order, which means that there are only 11 court sitting days—if tomorrow is the day on which the order takes effect—on which magistrates can hear applications for restriction orders. I was also concerned about the need to withdraw the right of appeal by licensees because of the late bringing forward of the order. I am grateful for the explanation that the noble Baroness has given and particularly for the assurances that she has given on these matters. She has therefore made it possible for me to cut out about three-quarters of my speech and I simply support the making of the order.

Lord Addington: My Lords, I support the order. Most of my questions were about the timing restriction. As both noble Baronesses have covered them I should like to say that we are generally in favour of the order. It is a hopeful sign which will enable people to enjoy their holidays slightly more and give a little input into an industry which has taken rather a battering.
	I hope that the general liberalisation of licensing laws, if it ever happens, will not be done on such a squeezed timescale. Having said that, generally speaking, I am in favour of the order.

Baroness Blackstone: My Lords, I am most grateful to the noble Baroness, Lady Anelay, and indeed to the noble Lord, Lord Addington, for their support for the order. I hope that the outcome will be as positive as it possibly can be and that plenty of people will be able to have an extremely enjoyable New Year's Eve and New Year's Day as a result. With hindsight we entirely accept that we should have begun the process slightly sooner. Part of the problem was that people did not anticipate that a delay would be caused by the general election and so parliamentary days were lost prior to the summer recess. I am grateful for the support expressed for the order.

On Question, Motion agreed to.

Social Security (Loss of Benefit) Regulations 2001

Baroness Hollis of Heigham: rose to move, That the draft regulations laid before the House on 22nd November be approved [12th Report from the Joint Committee].

Baroness Hollis of Heigham: My Lords, the subject is becoming increasingly sexy as the evening proceeds. I beg to move that the draft Social Security (Loss of Benefit) Regulations 2001 laid before the House on 22nd November be approved.
	We spend over #100 billion each year on social security. It is our duty to make sure that the system is secure from both fraud and error so that the right money goes to the right people.
	The latest figures announced on 29th November show that the measures we have introduced to tackle fraud are having a marked effect, reducing the level of social security fraud in income support and jobseeker's allowance by 18 per cent, which shows that we are going some way, and successfully so, to meeting our target of 25 per cent by 2004 and 50 per cent by 2006.
	While we have made a good start towards achieving the duty, we need to do more. We introduced a number of powers in the 2001 Social Security Fraud Act that received Royal Assent this May to support the overall strategy of safeguarding social security. The regulations tonight provide the detail for one of those measures. A further set of negative regulations introducing consequential amendments will be laid in January next year.
	The loss of benefit provisions are intended not only to act as a deterrent to recidivism; they also form part of the Government's continuing welfare reform programme. They build upon one of the key recommendations in the report of my noble friend Lord Grabiner on the informal economy that was published in March 2000. For the vast majority of people who cheat on their benefits their first conviction is their last. But for those who continue to offend we think it appropriate to bring an offence into play. The regulations describe the powers to take benefits away from people who persistently abuse the benefit system.
	We do not seek to introduce these powers to target those who have slipped into the system by error. While we have reduced the level of social security fraud in income support and jobseeker's allowance we are still finding cases that involve the commission of deliberate, repeated fraud.
	An investigation by the Benefits Agency security investigation services in May this year identified that three people were involved in the manipulation and subsequent encashment of order books. When arrested they had in their possession a number of order books, stolen identification and in excess of #1,050. The subsequent prosecution resulted in the conviction of all three defendants with sentences ranging from five months' imprisonment and a fine of #1,050 to 14 months' imprisonment. It was also revealed that one of the defendants had been prosecuted as part of a separate investigation in 1999. At the time they were sentenced to 90 days' imprisonment, suspended for two years. There is, and there continues to be, persistent wilful and serious fraud.
	The Social Security (Loss of Benefit) Regulations 2001 introduce powers that will provide a deterrent to those who are considering committing further benefit offences. These regulations are about ensuring that there is an effective deterrent in place to dissuade those who are subject to a first conviction for a benefit offence from re-offending providing that, where we have to apply a sanction, this is done in a uniform manner across all sanctionable benefits and that the level of the sanction applied is based upon experience gained from other areas of the department which are tried and tested. The regulations ensure that an absent or non-resident parent's responsibilities continue to be met by continuing to take child support maintenance deductions before a sanction is applied. They enforce that sanction, even where an offender tries to hide behind a partner by swapping benefit claims. This occurs in the case of a joint claim where an attempt is made to change who is the primary claimer. They continue related passport benefits when a sanction is applied, and the availability of fallback provisions to protect the vulnerable and those dependent on them by providing a scheme that is a close reflection of the hardship scheme that already operates for labour market sanctions. Finally, they ensure that a sanctionable benefit cannot be avoided by merely stopping and then re-starting a claim to benefit.
	These regulations are not disproportionate. They do not provide sanctions so hard that they will put people into serious destitution, nor do they target individual groups of customers. They are consistent across the board. What they do is introduce a fixed, 13-week disqualification period.
	I shall run very quickly through the regulations. Regulation 2 describes how the disqualification period will be administered, ensuring that it is applied in a consistent manner to all sanctionable benefits and payment. It also describes how the sanction will be applied to those offenders who seek to avoid it by ending and then re-claiming benefit. The powers are not intended to cause undue hardship to those who have not maintained their responsibilities back to us in relation to the benefit system.
	Regulation 3 describes how the level of reduction as a result of the application of the sanction is calculated for those offenders already in receipt of income support. The application of the two strikes sanction to all other sanctionable benefits will result in the removal of the full amount of benefit payable.
	Regulations 5 to 16 provide fallback provisions for those clients who would otherwise have no means of supporting themselves. They reflect the hardship schemes and the vocabulary of vulnerable people that already operate in labour market sanctions.
	In order to ensure that the sanctions do not impact upon the provision of housing—this, in my view, is extremely important because a dependent family must not be made homeless however wilful the offender's behaviour may have been—Regulation 18 provides for a continuance of housing and council tax benefit for those in receipt of income support or income based jobseeker's allowance.
	To ensure that an offender's responsibility to dependants will continue to be met, Regulation 20 provides that child support maintenance deductions that are made from benefit will continue and will not be impacted on by the implications of the two strikes sanction.
	I hope that your Lordships agree that we have already made useful progress in reducing social security fraud. We need to continue that momentum. We are not talking about errors or about trivial fraud; we are talking about sustained serious benefit fraud for which someone has twice been convicted by the courts. The regulations are part of our overall strategy on tackling fraud and rebuilding confidence in the welfare state that we all support. I commend the regulations to the House.

Moved, That the draft regulations laid before the House on 22nd November be approved. [12th Report from the Joint Committee.]—(Baroness Hollis of Heigham.)

Lord Higgins: My Lords, the measure is introduced under the Social Security Fraud Act 2001, which your Lordships laboured long and hard to improve. As a result of that labour, it became much better legislation than it was when it arrived here from another place.
	As the regulations are made within six months of the main legislation, my understanding is that they do not go to the Social Security Advisory Committee, under a provision in the Social Security Administration Act 1992. I was not involved in that Act, but I wonder whether that is a good idea. On a number of such regulations it is arguable that we would benefit from the committee's advice. On a separate point, no doubt the Minister can confirm that the regulations are consistent with the human rights legislation.
	When I first saw the regulations I was a little worried because, as the House will recall, we had long debates on the XWindlesham amendment", which would have imposed sanctions by withdrawal of social security benefits for crimes and misdemeanours that took place outside the social security system. I understand that the regulations operate purely within the social security system. The sanction will be enforced only as a result of fraudulent action within the social security system. To that extent we can reasonably welcome them. To use a shorthand form for this evening's rather esoteric audience, it is a XGrabiner point" rather than a XWindlesham point", arising from the Xtwo strikes and you're out" proposals from the noble Lord, Lord Grabiner.
	I should like the Minister to update some of the figures and clarify one or two points about the regulations. As I understand it, the Government propose to withdraw or reduce benefits for people convicted twice of a benefit offence within three years. The sanction will be for a fixed period of 13 weeks and will begin after conviction for a second offence if benefit is in payment. So far, so good. However, if benefit is not in payment, the sanction will begin when the entitlement first arises in the three-year period following the second conviction. The noble Baroness nods, but I do not understand how that will work in practice. She tried to cover the point in her opening remarks, but it is not dealt with in the explanatory memorandum. Perhaps she could explain how the provision will work in practice.
	Various estimates have been made of the size of the problem of benefit fraud. It was estimated in December 1999 that #2 billion a year was definitely lost, while #3 billion was suspected as being lost and there were suspicions about a further #2 billion a year. I am not at all clear about how those figures were arrived at, particularly how we know definitely that #2 billion a year is lost. Perhaps the Minister could clarify that.
	The Government have rightly set targets for the reduction of benefit fraud. I was surprised at the Minister's opening remarks. My understanding was that the target was a 30 per cent reduction by March 2007 and a minimum 10 per cent reduction by March 2002, but the noble Baroness seemed to refer to 25 per cent by 2004 and 50 per cent by 2006. I am not sure whether that is an updated target.
	There is also some confusion because the Minister in another place went on to say that the 10 per cent target was not only on track, but 18 months ahead of target. Working out the arithmetic, he ought simply to have said that the Government are ahead of their objectives. Perhaps the Minister could clarify the position on the various targets so that we can judge the Government's performance against them.
	The other point that emerges clearly is that the situation is not necessarily improving. An article in the Sunday Times said that an internal departmental report showed that the proportion of housing benefit fraud cases won by local authorities had gone down significantly. The record of local authorities on that is worrying. Only a very limited number of local authorities are successful in pursuing housing benefit prosecutions. The latest figures that I was able to find show that 40 per cent of local authorities did not successfully prosecute a single person for housing benefit fraud and 20 per cent had no data on whether they were prosecuting people for that.
	We are talking about imposing sanctions on the people engaged in fraud, but there should be a corresponding sanction on local authorities that are not dealing with the problem. Perhaps the Minister could tell us whether the situation has improved on that which I have just described.
	The Government are also engaged in a heavy advertising campaign. The posters are so apparent that I happen to have noticed them. Do we have any cost-benefit analysis of the advertising campaign? What further reduction do the Government expect as a result of it, and what is it costing?
	Finally, I come to the question of hardship, on which the noble Earl, Lord Russell, spent a lot of time at earlier stages. We were all concerned about the possible effects of hardship. There was particular concern about whether someone who lost their housing benefit might then find that they were homeless because they were unable to make the payments on their home.
	If I understood the noble Baroness correctly, she announced a change in policy on that. I thought that she said that the position of the people in the home would be protected if the head of the household had acted fraudulently. That is important and has implications for local authority funding.
	I should like the Minister to bring us up to date on those matters. The Act was very important. Perhaps she could give us some indication of the extent to which the action taken under the regulations is expected to contribute towards the achievement of the Government's targets. I hope that she can clarify more precisely what those targets now are.

Earl Russell: My Lords, several times during this afternoon's perambulations I have been reminded of the exam candidate who said that Sir Robert Walpole was extremely unpopular because of his exercise scheme. I must confess that, because of this unaccustomed exercise throughout the afternoon, my preparation for this debate has been a little less thorough than it might have been.

Lord Higgins: My Lords, I think that that was because Walpole let his sleeping dogs lie and did not take them for a walk.

Earl Russell: My Lords, yes he did indeed. It is pity that Ministers do not follow the same policy a little more often. Anyway, I offer my apologies to the House.
	There is nothing new about fraud. One of my pupils once discovered a case of someone found begging outside St Margaret's Westminster in 1614, who was found to have in his pocket the sum of #30. That was between two and three years' wages for an ordinary labourer. He was to be dismissed on paying #5 to the Poor Box. He bargained it down to #4 and got off. He was clearly a seasoned felon.
	Fraud is always with us; hostility to fraud is always with us. But one wants to try to make the punishment fit the crime. One of the curious things about the measure we are discussing is that, as it appears to me, it bites more heavily on the less serious than on the more serious offenders because it can bite only on those who actually have a benefit entitlement. If you have no benefit entitlement, you have nothing to forfeit under these provisions. Take, for example, the case in today's Times, headed,
	XFA Cup hero faces jail over benefit fraud".
	The person in question is the holder of a Cup winner's medal and a former Manchester United player. The article states:
	XDuring one 25-week period, Martin, 33, worked on television, 40 times, earning #11,300, while claiming jobseeker's allowance and council tax benefit".
	That sum is well above benefit levels.
	If that person is deprived of his benefit entitlement, in Gibbon's words, he loses the superfluous treasure. He loses something which he does not have, so he is in effect not punished, whereas the equally fraudulent person whose income is nevertheless below benefit levels does suffer a punishment which his richer fellow offender does not. I do not follow the justice in that and I never have done.
	The Minister also said that the regulations do not bring anyone into serious destitution. I should be very grateful when she replies if the Minister could tell us how she knows that and on what research evidence that is based. It was an extremely confident statement. If there is a source behind it, I should like to know it.
	More generally, I should like to know what she believes is the effect on the adequacy of living standards of a 40 per cent reduction in benefit and what kind of sacrifices that involves. If she does not know that, will she at some time put herself in the way of finding out?
	The same questions apply in relation to hardship. It is something of a perplexity to me why levels of hardship payments have been fixed at the point where they are. Is there any academic study which underlies the choice of that particular level of hardship payments? Why is it thought that hardship does not occur if there is a 20 per cent reduction whereas it will occur if there is a 40 per cent reduction? Does that rest on any empirical evidence, or is it simply a guess?
	I take the Minister's point about Regulation 18; namely, that the dependants are freed from the effect of a reduction in housing benefit. One must welcome that. However, the Minister did not mention Regulation 17 which would impose on someone who does not have dependants a 40 per cent cut in housing benefit. Has the Minister considered the effect of that on a landlord who, of course, may be an equally guilty party but is not necessarily such and need not be assumed to be? Far too many landlords do not accept people who are on housing benefit. That makes housing people who are on benefit more difficult than it should be. Is it an incentive to a landlord to subject him to the potential for loss of income when he has not done anything at all that he should not? Has that angle been taken into account?
	I also want to ask the Minister about one rather unexpected provision which is in Regulation 5(1)(d)(i) dealing with polygamous marriages where it is provided that there shall be hardship payments if one member of the polygamous marriage is pregnant. There is no provision made for two, or, indeed, I suppose, the hypothetical possibility that more than two members of the polygamous marriage may be pregnant. That, I should have thought, would have created even more hardship. One hopes that it will be taken care of some way or other.
	Finally, I want to raise what I hope is simply a question of ambiguity. I refer to the final regulation, Regulation 27, which I shall try to quote exactly as I do not want to cause any misunderstanding. It arises from Regulation 21, but Regulation 27 is, I think, a numeration interpolated in another set of regulations. Regulation 27 provides that,
	XA decision of the Secretary of State that a sanctionable benefit . . . is not payable",
	cannot be a matter of appeal,
	Xwhere the only ground of appeal is that any of the convictions was erroneous".
	That could mean two things. It could mean that you cannot use an appeal against the certification to argue about the justice of the penalty, or it could mean that the fact that one of the convictions is actually erroneous does not remove the penalty. If it means the second—I think that I can take it from the Minister's body language that it does not—that would concern me. However, I should be glad if she could confirm that.

Baroness Hollis of Heigham: My Lords, I thank the noble Lord and the noble Earl for their comments. I should be even more grateful if I had been given even more notice of some of the more technical points, apart from that on polygamous marriages, which the noble Earl was kind enough to share with me. However, I shall do my best to respond.
	I turn first to the points raised by the noble Lord, Lord Higgins. The point about the six-month rule for the Social Security Advisory Committee is basically that the regulations are still within the shadow cast by the debate on the Act and therefore in that context any parties who might otherwise be consulted by the Social Security Advisory Committee would have been involved in putting in submissions, lobbying etcetera on the Act. That is the reason for it. It seems rather foolish to consult the same groups one has consulted on the same matters when that was part of the framework Bill. However, I accept that there may be occasions on which that would be wise, but the matter seems to me fairly clear. We had full debates on it at the time. Therefore, perhaps in this case the noble Lord would agree that the discussions and the debate made very clear what the content of the regulations that followed would be and, therefore, that in that case consultation was redundant.
	The noble Lord asked whether the measure was consistent with the ECHR. It is indeed. He then asked how we would apply the sanction within three years of the date of conviction. If someone is not on benefit following conviction, obviously there is nothing on which to bite. Clearly if, within three years, that person—I shall use the word Xhe" as a generic term—comes on to benefit, then the sanction will begin to bite. The central team will track cases and a decision on eligibility, benefits and sanctions will be made by decision-makers in the usual way. Have I understood the noble Lord's point on this matter? From his body language, I am not sure that I have.

Lord Higgins: My Lords, I am not sure. As I understand it, someone is convicted of a benefit offence when he is not on benefit. I have some slight difficulty in understanding how that can come about. However, if I understood correctly what the noble Baroness has just said, if within a period of three years someone came on to benefit, he would lose 40 per cent of it or thereabouts. It seems to me that the task of tracking such a situation will be extraordinarily difficult. It seems a very odd arrangement. The person in question has a sword hanging over his head depending on whether he subsequently goes on to benefit. It seems an extraordinarily strange arrangement.

Baroness Hollis of Heigham: On the contrary, my Lords. Such a person would have committed an offence the first time, would have been convicted by the courts and would then have received serious warnings. While still on benefit, he goes on to commit a second offence. It may well be that by the time the case comes to court he is no longer on benefit. Therefore, the question is: what does the department do, given that he has committed two offences involving benefit but, for whatever reason, he may simply have taken himself off benefit to avoid sanctions.
	Our position is that if, over the next three years, he then goes back on to benefit, the sanction will come into play at that point. The sanction will be exactly the same as if he had received it at the time that the sentence was imposed on him. Therefore, the measure simply provides a way of preventing someone avoiding a sanction by coming off benefit for two or three weeks and then going back on to it again, whereas previously the time gap meant that the sanction no longer bit. That must be right, otherwise clearly the opportunities for manipulation are huge.

Lord Higgins: My Lords, I am most grateful. I understand what the noble Baroness is saying, but I need to think about it.

Baroness Hollis of Heigham: My Lords, I believe that the measure is only right and proper. If someone does not have the wit to come off benefit for a fortnight, he will experience sanctions, whereas someone who has the wit to come off it for a fortnight will not. We are saying, in effect, that this will bite within the three-year period.
	The noble Lord asked how we arrive at the fraud estimates. We have moved away from the old system in which we had cases of confirmed fraud, highly suspected fraud and possible fraud and applied a 32-week multiplier. We now have a continuous programme of sampling cases from districts. A sample is drawn from all districts over a quarter. Two teams conduct the checks. The estimates of fraud and error are based on results from a random sample of people for the benefit concerned. In each case, the payment of benefit during a particular week is checked. The amount by which that week's benefit is incorrect is recorded and then the total weekly sum for each benefit lost is calculated with a sample in each location, and so on. I could go further into the methodology.
	In other words, we have moved away from an extrapolation multiplied by 32, which, I have to say, I criticised heavily in opposition, into a system which is based as closely as possible on behaviour in particular district offices. That is the basis on which we calculate the estimates of fraud sums.
	The noble Lord asked about fraud targets. I can confirm that, indeed, the figures of 25 per cent by 2004 and 50 per cent by 2006 remain our target. I believe that we had expected to claw back 10 per cent in the first year. We have exceeded that and the figure is now 18 per cent. That may be where the original cutting across lines happened.
	The noble Lord talked about the increase in housing benefit and the problem of prosecuting housing benefit fraud. He is right; that has long remained a difficult area. However, I believe that the evidence suggests that local authorities now have the issue of prosecution in hand. For example, in the first six months of this year—2001-02—there were 686 successful prosecutions. That suggests a figure of 1,200 to 1,500 prosecutions—a significant increase on our figures in preceding years. That has been allied to the fact that we have made #160 million available to local authorities to operate the verification framework. By 2004 that will cover 85 per cent of HB expenditure.
	Sixty per cent of councils have already adopted that verification framework and 367 local authorities have signed up to the department's Xdo not redirect" scheme. I am not trying to suggest that there is not still a considerable way to go, but I believe that it is the case that 60 per cent of local authorities are already within our verification framework; we expect to have 85 per cent of their expenditure covered by the year 2004; the rate of prosecution is increasing; and we are slowly beginning to see some of the benefits flowing from the interchange of common information between the department and local authorities which, after all, are administering a national benefit. I do not pretend other than that the performance is uneven and patchy across the country but we shall do our best to monitor it. We are investing #2 million this year on training up to 900 local authority fraud investigators. The department takes the matter seriously. Most local authorities are responding positively—although some are still not taking diligent action, as they need to do, on what is a big ticket crime.
	The noble Lord asked about housing benefit and hardship. The maximum reduction in housing benefit is 40 per cent but that will apply only where it is not passported by income support. Even if the fraud is committed against housing benefit, that will be the last benefit on which the penalty will fall. If one receives income support or JSA, almost invariably the sanction would fall there—but not in 100 per cent of cases. One could be a low earner and get HB. If the offence were against HB at that point, it would be sanctioned. If one were an earner, the assumption would be that disposable income would be available through one's wages to make up the shortfall in rent as a result of the sanction. We have a hierarchy of benefits on which the sanction falls and HB is last in line.
	Our best estimate is that, in the eyes of the courts, 500 people per year commit a benefit offence, so the benefit sanction is likely to bite on 500 households per year. The noble Lord asked how easy it will be to track the situation. The numbers are not great. For most offenders, the punishment handed out by the courts is enough—but there is a 5 per cent recidivist rate, which suggests that 500 or 550 people might fall within the regime every year.
	The noble Earl, Lord Russell, said that the measure will bite more seriously on the less serious offences and that it will bite only on those who receive benefit. Yes, because that is the benefit being sanctioned. However, that will be in addition to the court's sanction.
	The benefits fraud case involving a former professional footballer also caught my eye. That individual appears to have been earning #11,300 from TV appearances while claiming jobseeker's allowance. As he was not eligible to continue receiving benefits, the department could not sanction him but the court will punish him. I understand that sentence will not be handed down until January so I cannot say what it will be. I do not doubt that the court will take into account his mitigating financial circumstances and needs. It may be that the sentence will be appropriately more severe than might be the case for someone who remained on benefit.

Earl Russell: My Lords, I do not remember in the parent Act any instruction to the court to impose a lighter penalty on those who are already suffering a benefits sanction.

Baroness Hollis of Heigham: My Lords, it is the other way around. The benefit penalty will come into play only when the court has determined whether somebody has committed an offence for the second time. From my experience, one third of benefits offenders who go before the courts receive a conditional discharge. They are not usually former footballers who have been earning #11,300 and wilfully claiming extra money. They tend to be overwhelmed lone parents struggling with a child who might be unwell. In that context, the courts do discriminate between the circumstances of individual claimants. Someone who is not on benefit may receive a heavier punishment.
	The noble Earl asked whether the hardship regime will result in serious destitution. Let us suppose that a lone parent with two children receives income support, #100 a week housing benefit and council tax benefit. Let us further suppose that that parent has been convicted not once but twice of benefit fraud and that the court has not given her an absolute discharge. Her current income from any sanction, including the value of housing benefit, would be #231.85. After the sanction, that figure would be #210—a drop of #20. I am not saying that the sanction will not bite but it will not cause destitution.
	As to polygamous marriages, I understand that only one spouse in the relationship is regarded as a couple for the purposes of JSA. Other spouses are treated as dependants. If another spouse had a child, that would be a further dependant within the relationship who was entitled to income support.
	On Regulation 27, it was suggested that the appeal was not erroneous. That involved establishing whether there was a challenge to the legitimacy of the court sentence. I am fairly confident that noble Lords will accept that it is reasonable that the benefits system cannot tackle that and that it should not be an appeal basis for a court sentence.

Lord Higgins: My Lords, the Minister mentioned that #160 million is being paid to local authorities to help them to catch benefit fraud. Have we any indication of how much extra they expect to receive as a result? Other figures that she gave—for example, the fact that 500 people a year might be caught by the provisions—suggest that the amount that she expects to save is not proportionate to the amount being spent on trying to catch those people.

Baroness Hollis of Heigham: My Lords, I agree. The trouble is that in this context we are spending more than we may find out we have deterred, but we do not know how much we will save in total through deterrence. The noble Lord will be interested to know that whereas last year there were 1,000 prosecutions and in the previous year there were 860, the figure now is 50 per cent higher—there will be about 1,500 or 1,600 prosecutions. Given recidivist rates of about 5 per cent, it may be that about 50 prosecutions for housing benefit fraud will result in subsequent sanctions. With that information, I hope that I have helped noble Lords further to understand these extremely complex—and unsexy—regulations.

On Question, Motion agreed to.

Anti-terrorism, Crime and Security Bill

Consideration of amendments on Report resumed.
	Clause 34 [Certificate that Convention does not apply]:

Lord Dholakia: moved Amendment No. 34:
	Leave out Clause 34.

Lord Dholakia: My Lords, in moving this amendment, I shall speak also to Amendment No. 35.
	I raised my concerns about Clause 34 at Second Reading. It is a matter of concern that we are trying to some extent to bypass the refugee convention. We have supported that convention since 1951 and the Government have yet to explain why such draconian measures are necessary.
	There is no disputing the fact that the UNHCR and the UK Government share common ground on the importance of the 1951 convention as an international instrument that is precisely framed to provide protection for those who need it while ensuring the exclusion of those who do not deserve it. That has been the practice to date, and it has served us fairly well.
	The point at issue is that every aspect of the case should be known and considered by SIAC. Furthermore, examination within the asylum process should ensure that the final decision to exclude, with all of its potentially serious implications, takes full account of the competing nature of potential prosecution and the seriousness of the grounds for exclusion.
	The international nature of the protection regime means that participating states have a legitimate interest in knowing how the decision to exclude, rather than to grant asylum, has been arrived at. That is of considerable importance when excluded cases are removed to another country.
	The stated purpose of the clause is to allow the Home Secretary to certify people who are suspected of terrorism as being either undeserving or outside the scope of the 1951 refugee convention. So long as such a certificate remains in force SIAC would not be able to consider that person's asylum claim.
	Certificates issued under Clause 33 will state that a person is excluded from refugee status under Article 1(F) of the refugee convention (persons considered not to be deserving of international protection) or can be returned under Article 33(2) on national security. However, SIAC will be prevented from examining substantive asylum claims. Under this clause SIAC will be able to decide only on whether the certificate was properly made. It is difficult to see how it is possible to make a proper judgment about whether someone should be excluded under Article 1(F) or Article 33(2) without considering his or her whole story in the form of a substantive asylum application. Only through such a full consideration can people be safely excluded from the 1951 refugee convention.
	It is unclear why the provision is deemed necessary. SIAC was established in 1977 precisely to consider appeals by people, including asylum seekers, being removed on grounds of national security. Under existing powers, SIAC simultaneously considers the substantive asylum claim and evidence that the applicant is a threat to national security. In cases where national security considerations are present, it is able to access intelligence information in a way that does not compromise sources and then make a determination on an asylum or immigration claim.
	It is worth noting that only three cases have ever been referred to SIAC. We can see no justification, including on grounds of national security and efficiency, for the provision to limit SIAC's consideration of such cases only to the issue of the Home Secretary's certificate. That is why we suggest that there should be a full substantive interview to decide the asylum claims and only then a decision on whether to exclude on the basis of Article 1(F) or Article 33(2). The call for an integrated and comprehensive approach is also the view of the UNHCR. All asylum applications should be considered fully and on their own merits before any decision is taken.
	I believe that the system of international refugee protection, enshrined in Article 14 of the Universal Declaration of Human Rights and embodied in the 1951 refugee convention, would be seriously undermined if individual states were able to pick and choose which asylum applications should be considered. We need an explanation from the Minister of why the clause is necessary when there are adequate safeguards under Article 1(F)(b). In view of the seriousness of the issue and the consequences of an incorrect decision, the application of any exclusion clause should continue to be individually assessed, based on all available evidence and conform to basic standards of fairness and justice.
	With their asylum policy already in administrative shambles, the Government are generating further procedures which are a blot on the rights and liberties of the individual so clearly prescribed in the refugee convention.
	I asked the UNHCR to cite me some case studies on how the clause would be applied. I have been given an interesting case study of an outspoken campaigner on women's rights who lives in a repressive regime with a poor human rights record. It is well documented that torture is routinely used in its prisons. He is the founder and director of a small human rights charity which, contrary to government legislation, utilises financial donations from a western European state. When that is discovered he is tried and sentenced to 20 years' imprisonment on charges of corruption and endangering state security and is not allowed legal representation. His conviction has been denounced by a human rights group. He seeks asylum in the United Kingdom. What happens? Under existing procedures all aspects of the case would be examined with a view to determining whether the applicant fulfils the criteria for refugee status. Facts indicating the relevance of Article 1(F) issues would emerge in the course of a comprehensive fact-finding process. At the point of decision a complex range of factors would be carefully weighed. These would include whether the threat of individualised persecution was grave enough to offset the seriousness of the charges against the applicant.
	The interplay between persecution and prosecution would be looked at and the laws of the country would be set against international human rights standards. Asylum would be granted if, notwithstanding the applicant's alleged crime, he is deemed to deserve international protection. Under Clause 34 as it stands, by contrast it would appear that this applicant would be automatically excluded and the asylum claim dismissed solely on the ground that he committed crimes in his own country.
	I now deal with Clause 35. We require better clarity here. Can the Minister confirm that it is not his intention that this clause in the Bill will not lay down a rule of construction applicable to all asylum cases? If it does then the issues raised take on even more importance. The clause removes the requirement to balance the gravity of exclusion grounds with the gravity of the consequences of return.
	In circumstances where exclusion from the refugee convention is being considered, this clause seeks to prevent any consideration of the gravity of persecution a person has suffered, or would suffer, if returned to his or her own country. There is some doubt as to the purpose and scope of this clause. It is unclear whether its scope is limited to Clause 33 on certification or whether it is freestanding.
	As a signatory to the refugee convention the UK has a legal obligation to fully consider all asylum applications on their merits. This clause threatens at a fundamental level our commitment in that regard. Only the consideration of the full facts of a case can lead to a decision which is sound and which does not risk the grave consequences of removing a person to face persecution.
	The SIAC is equipped to consider such matters including evidence from the intelligence services. This clause runs counter to the UNHCR handbook on the interpretation of the refugee convention. It states that in applying the exclusion clause in the refugee convention,
	Xit is also necessary to strike a balance [between] the nature of the offence presumed to have been committed by the applicant and the degree of persecution feared".
	The reasons for exclusion under Article 1(F) and Article 33(2) are not limited to terrorism. For example, they also exclude the commission of a serious, non-political crime outside the country of refuge prior to an asylum seeker's admission to the country. These convictions may have been politically motivated in the absence of a fair judicial process. The Government must clarify the purpose of the clause and respond to the concern that it also affects people that it does not suspect of terrorism.
	I wonder whether there is some serious confusion between Clauses 34 and 35. I understand that these clauses were one clause. They were split into two clauses for the sake of clarity only. Will the Government confirm that Clause 35 is not freestanding and only an aid to the construction of Clause 34? We need to have a proper balance between maintaining national security while protecting basic liberty. The draconian powers sought by the Secretary of State are unnecessary and undermine the fundamental right to seek asylum.
	We already know how easy it is to generate hostility towards genuine asylum seekers. There is a danger that they will soon be equated with potential terrorists. That is precisely the opposite of what the Government intend. The danger is that it will create a situation in which asylum seekers and members of ethnic minorities will face a heightened risk of social exclusion, racial attacks and harassment. There is enough evidence to confirm that. I beg to move.

The Lord Bishop of Portsmouth: My Lords, I am grateful for the opportunity tonight to have this debate after last Thursday night. I believe it was Ibsen who wrote that no one should put on their best trousers when going out to do battle for freedom and truth. Although the condition of the trousers I am wearing at the moment may not be visible, I fear that on this particular clause hangs much of the balance of applying freedom and truth to the very complex issues addressed by this Bill. We have had many manifestations of those complexities so far.
	Clause 34 would prevent SIAC from looking at asylum claims when it should and would deprive those against whom it is directed from any kind of status as asylum seekers. To put it bluntly, this clause not only ties the hands of SIAC but also gags the appellants. I believe that it should be removed. In my view, and in the view of my colleagues, it is an over-reaction. It does not sit easily with our democratic traditions and I am concerned that the Government appear so willing to pay such a high price to achieve what I believe to be comparatively little.
	It appears to me that Clause 35 is as unsatisfactory as Clause 34. According to this clause, any court faced with asylum claims involving serious crimes cannot in certain circumstances consider issues relating to persecution or well-founded fear. That is my understanding. It appears to be a re-interpretation of the Geneva Convention of 1951. It prevents the whole picture from being considered.
	Article 1(F) and Article 33(2) appear to provide exactly what is needed and no more. Article 33(2) has its own safeguards and ensures that criminals are properly identified. In the view of these Benches, these clauses are unnecessary and misguided.

Lord Avebury: My Lords, I support the amendment moved by my noble friend. I draw attention to those parts of the clause that the amendment seeks to delete that reinforce the remarks made by the right reverend Prelate. The commission has only two options. Once the Secretary of State has issued a certificate, the commission has to decide only whether it agrees with the statements made by the Secretary of State in support of the certificate and, if not, it quashes the decision or action against which the asylum appeal is brought. If the commission agrees with the statements, it must dismiss the asylum application. As the right reverend Prelate said, that means that the applicant is never entitled to a substantive hearing on his application for asylum.
	It seems to me that Clause 34(6) gives the Secretary of State an unlimited power to make a new decision, following an adverse decision by SIAC. If the Secretary of State does not succeed in convincing SIAC that the statements that he has made in support of the certificate are true, he can refuse the individual's application on any other ground that comes into his head. That is how I read subsection (6).
	Furthermore, the original application that was put on ice while SIAC considered the certificate, is then treated as undecided for an indefinite period following a ruling by SIAC against the Secretary of State, while the Secretary of State determines whether to make a new decision. There is no question of autre fois acquit in such matters. First, the Secretary of State fails in his certificate before SIAC and then he can take an indefinite time to produce a new refusal on totally different grounds. It seems to me that that is entirely contrary to natural justice.
	In considering what is being attempted here, the articles cover a far wider range of circumstances than terrorism. I shall confine my attention to Article 1(F) because Article 33 applies rather different criteria than deciding whether a person having been granted asylum should be protected from refoulement. Therefore, I would consider that it is inappropriate in the context of a decision on whether to grant asylum in the first place. That stage has not yet been reached. Article 1(F), as has been said, provides that the convention shall not apply to any person who has been convicted of a serious non-political crime in a country other than the United Kingdom.
	The UNHCR handbook, to which my noble friend Lord Dholakia has already made an indirect reference, on the interpretation of the convention makes it clear that,
	Xin applying the exclusion clause [1(F)] it is . . . necessary to strike a balance between the nature of the offence presumed to be committed by the applicant and the degree of persecution feared".
	In connection with that, I ask the Minister whether a conviction in another country is to be taken as conclusive? Obviously, it is not at the moment. It will depend very much on the legal system which prevails in the country where the conviction was secured and the question of proportionality, which has already been referred to, whether the applicant has a fair trial or whether the defence that he committed was outweighed by the degree of persecution that he feared. None of those considerations can be dealt with by SIAC since it has to decide only on the truth or otherwise of the certificate with which the Secretary of State presents it.
	So the Secretary of State comes along and says, XThis person has been convicted of such and such an offence in another country". If that is true it makes no difference what the quality is of the legal system in that country and whether or not the offence committed should have been counterbalanced by the degree of fear which that person experienced.
	My noble friend gave a hypothetical and very good example which he obtained from UNHCR. I shall quote a real life example. I draw your Lordships' attention to a very disturbing case taking place at the moment in Russia. It is the retrial of Grigory Pasko, a journalist. He is charged before the Court of the Russian Pacific Fleet in Vladivostok on charges of spying. The ingredient of the offence was that in September 1997 Mr Pasko attended a meeting of the Military Council of the Pacific Fleet in order to cover it for his newspaper, Boyevaya Vaktha. He took some notes for possible later use in an article.
	According to the indictment, Mr Pasko kept the notes at home. They were confiscated by the police on 20th November 1997. The prosecution claimed, without presenting any evidence, that the notes contained state secrets and that Mr Pasko had transferred the notes to Japan.
	Suppose that he was convicted of this very serious offence of spying. By some means he then escaped from Russia. He presented himself at Dover and asked for asylum. He would have a conviction, assuming that that is the way that it goes, and I hope that it does not. The Secretary of State would be perfectly entitled to sign a certificate and say to SIAC that this person had been excluded from consideration from asylum in this country by one of the subparagraphs of Article 1(F).
	Many other examples might spring to mind. We were earlier talking about Zimbabwe. Everyone knows that the judicial system in Zimbabwe has been seriously undermined by President Mugabe, and that it would be quite difficult in certain circumstances to get justice before the courts in that country. Someone comes here from Zimbabwe, having been a member of the opposition and convicted in the courts of an offence in connection with an election rally and asks for asylum. The Secretary of State certifies that he was convicted in Harare of causing disorder at an election meeting. He is automatically barred from any further consideration. The substantive case for his application for asylum cannot be considered.
	Your Lordships could develop other examples. But we have said enough to show that this is an extraordinarily dangerous course. I hope that, having done that, we shall, unlike on other occasions, convince the Minister that the Government should think again. There has been precious little of that today—or, indeed during the Bill's previous stages. I hope that, on this matter at least, the Minister will do the sensible thing and, if he is not satisfied with the amendment, return with one that removes those dangerous powers from the Bill.

Lord Rooker: My Lords, I shall do my best to answer some of the points raised, but I am clearly not going to convince noble Lords who give every impression that they do not think that Articles 1(F) or 33(2) should exist. That is the thrust of most of the speeches to which I have just listened. The fact is that there are international treaties and obligations that some people—I stress, some people—exploit, which sends out all the wrong messages. Those provisions are there in international treaties; we will not abuse the situation.
	I draw noble Lords' attention to United Nations Security Council Resolution 1373, passed on 28th September, which required states to,
	Xtake appropriate measures in conformity with the relevant provisions of national and international law, including international standards of human rights, for the purpose of ensuring that the asylum-seeker has not planned, facilitated or participated in the commission of terrorist acts".
	I intend to meet noble Lords on one point, which has been legitimately made. I shall come to that in a moment.
	Why do we want the clauses in the Bill? They send out a clear message that we will not tolerate people whose actions clearly exclude them from the protection of the convention. We are not rewriting the refugee convention; the provision is already there. No one wants to talk about that; people will talk only about the positive provisions for refugees with a well-founded belief. No one ever refers to the fact—there is no press comment and no speeches are made on it—that parts of the convention do not apply to certain people because they put themselves outside it.
	The noble Lord may shake his head, but the provision would not be there if it were not for the fact that when the convention was drawn up it was envisaged that some people would by their own actions put themselves outside its protection. All that we are doing is drawing attention to the fact that we are not prepared to have people abusing our asylum system when they have put themselves outside the convention's protection. How we operate that system is important.
	Some noble Lords have argued that the provisions are detrimental to the standing of the convention. I do not agree. It has been suggested that it is not possible to come to a view about whether Articles 1(F) or 33(2) apply, except in the context of considering the whole asylum claim. We think that concern misplaced. In considering whether Article 1, for example, was relevant, we would consider any relevant information.
	For example, if there were grounds for believing that a person was involved in terrorist activities and that person sought to argue that his involvement had been unwitting or had been a marginal involvement which he had undertaken only as a result of coercion, we would consider those points as part of the assessment of the claim and whether to issue a certificate. We would not just take ill-considered decisions on exclusion without hearing the person's case. Nothing in the clause is intended to produce such an approach. I must say that noble Lords are reading more into the clause than is there.
	Others may be concerned that by focusing on the exclusion aspects, we will ignore or pay less attention to humanitarian factors. It is true, of course, that we would not consider whether a person had a well-founded fear of persecution under the refugee convention—a point to which I shall return in the debate on Clause 35. But we would give proper consideration to factors put forward by the applicant as to why he should not be removed from the United Kingdom. That would include any European Convention on Human Rights issues raised.
	Others would argue that it is pointless treating asylum claims of certain individuals in that way when their removal may not be possible because of considerations such as Article 3 of the ECHR. That has already been argued outside debate on the Bill. It has been argued in this House since I have been a Member that if we cannot remove people we should simply weigh them in, accept them and not bother about anything else. We are not prepared to do that. Just because we know we cannot remove them does not mean to say that we should not go through a full claim so that their status is made clear. Different countries are involved and times change. Removal may not be possible in some decades, but it may be possible in others. People may be able to return home when the situation changes.
	We do not therefore agree that that is a reason to take no action as regards the asylum claim. Refugee status is an important one and we want to protect the integrity of the convention by making proper use of its exclusion provisions. We are talking about the exclusion provisions in the convention, not those in the Bill. They already exist and have done so for decades.
	We are sending out that clear message. It is not intended to be abusive. Noble Lords have given two examples in terms of consideration but I cannot comment on them from the Dispatch Box. One is hypothetical and one is real. I accept that. However, the fact is that we are not merely going to say, XYou have been convicted and therefore you are out with". We shall give proper consideration to the case before the certificate is issued. That may lead to the certificate not being issued.

Lord Avebury: My Lords, I am sorry to intervene. The noble Lord said that all these issues would have been considered before the certificate was issued. That is not stated on the face of the Bill and I am sure that he could go some way towards reassuring the House. Perhaps between now and Third Reading he can devise some words which would require the Secretary of State to go through all the considerations of proportionality which we have discussed prior to issuing the certificate.

Lord Rooker: My Lords, we are not in non-listening mode and every suggestion we can make sense of we will consider. I take it as axiomatic that those considerations will be in the mind of the Home Secretary before he issues the certificate. It is not a question merely of signing the certificate because someone says, XThis person is not bona fide". We will look at the case. On the other hand, if there is anything we can do with the wording to meet that point if it is not implicit, we shall do so.

The Lord Bishop of Portsmouth: My Lords—

Lord Rooker: My Lords, I am not going to be able to get to Amendment No. 35 and I have got something good to say about it.

The Lord Bishop of Portsmouth: My Lords, I am sorry, carry on.

Lord Rooker: My Lords, I want only to comment on the point made by the noble Lord, Lord Dholakia. Clause 35 as drafted looks as though it is free-standing. There is nothing in it which directly connects it to Clause 34. As a lay person and not a lawyer—we have to take advice on these matters—I would be happier if it were connected to Clause 34 in an explicit way if that can be done. It is not our intention to abuse the legislation. We are examining it between now and Third Reading or before the Bill returns to the other place.
	I do not believe that we can return to the original drafting of the clauses. They were separated for clarity, as the noble Lord, Lord Dholakia, said. However, if there is a way of connecting them which retains the policy objectives so that people can be assured that Clause 35 would not be abused—no one has said that but the implication is that if Clause 35 were free-standing it could be applied in other circumstances—we shall consider that. It is contained in the Bill for the reason which applies to all the other provisions. If we can find a way of tying Clause 35 into Clause 34 which does not cause us problems with policy objectives, we shall examine that. I had discussions with officials before the debate took place.
	Furthermore, I reiterate the point I made about the concern expressed by the noble Lord, Lord Avebury. The rules and procedure under which the Home Secretary would issue a certificate would cover those points and if there were any way in which we could achieve additional clarification we would certainly consider it.

The Lord Bishop of Portsmouth: My Lords, I believe that all noble Lords are grateful to the Minister for his response to the debate thus far. Speaking also as a layman, the point at issue is that in the view of many noble Lords the House is dealing with rushed legislation which is not entirely clear. If the Minister can somehow meet some of the points raised in a way that draws Clauses 34 and 35 together and reassure noble Lords about how the legislation will be put into practice, it will go a long way to meet the concerns expressed so far.

Lord Rooker: My Lords, I can only reiterate what I have said. We are actively looking at one of the two points anyway, and, given the way the matter has been raised, we shall see whether we can do something about the other. It is not our intention to send out the wrong signals or to build Fortress Britain. Our aim is to ensure that the rules under which we implement the convention are not abused by others who have the kind of background that is implicit in what we have said.

Lord Dholakia: My Lords, I am grateful to the Minister. I should very much like consideration to be given to those two points. If the Minister can communicate with us before Third Reading it will give those noble Lords who disagree with him an opportunity to move the appropriate amendments. In the light of that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 35 [Construction]:
	[Amendment No. 35 not moved.]
	Clause 36 [Destruction of fingerprints]:

Lord Dholakia: moved Amendment No. 36:
	Leave out Clause 36.

Lord Dholakia: My Lords, while we accept that in relation to asylum seekers suspected of involvement in terrorism the keeping of fingerprints may be justified, we do not accept that it is justified in relation to the 99 per cent of innocent refugees. Therefore, the clause should be restricted to those to which Clause 21 applies. I beg to move.

Lord Rooker: My Lords, I can only repeat that, while it may not apply to 99 per cent of cases, the provision allows for the retention for 10 years of certain fingerprints taken in asylum and immigration cases which were previously destroyed once the matter had been dealt with. Since 1993 all asylum seekers have been fingerprinted. The process is now digitalised and there is a good deal of technology involved in it. If an asylum seeker wins his case and becomes a refugee he is no longer an asylum seeker and his fingerprints will ordinarily be destroyed. If an individual fails to become a refugee his fingerprints are retained. Cases have arisen in which people have become refugees and reapplied as asylum seekers to create different identities with new passports and new social security numbers, for whatever reason.
	As I believe I said at Second Reading, on my first visit to Croydon someone was picked up following an intervention. This clause is a precautionary measure and does not affect anyone. The power arises only if someone has already been fingerprinted under one identity and turns up to make another claim for asylum. It beggars belief but it happens. With the available technology, even a small number of cases can be prevented. For that reason, we believe that the clause should remain in the Bill.

Lord Dholakia: My Lords, the Minister gave that example on a previous occasion. The number of cases that we are talking about is very low. However, in view of the lateness of the hour, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 1 [Forfeiture of terrorist cash]:

Lord Kingsland: moved Amendment No. 37:
	Page 1, line 9, leave out Xa magistrates' court" and insert Xthe High Court"

Lord Kingsland: My Lords, I realise that we are operating under a fairly tight time schedule and so I shall speak only to those amendments that I consider to be of particular importance. As to the group of amendments led by Amendment No. 37, here we are concerned with the appropriate court in which to make an application for a restraint of cash order and, subsequently, a forfeiture order. We recognise the need for such a procedure. However, as I said in Committee, the magistrates would be faced with difficult questions of fact and law. We believe that the nature and complexity of those questions require the skills of a High Court Chancery judge. I beg to move.

Lord Rooker: My Lords, I respect what was said by the noble Lord, Lord Kingsland, and so I, too, shall be brief. However, if I had realised that this matter would be raised again on Report, I would have asked all the Members of this House who are magistrates to be present at what is a fundamental attack on the competence of magistrates. I think that I should have said that the last time round.

Lord Kingsland: My Lords, I wonder whether the noble Lord would allow me to intervene.

Lord Carter: My Lords, I remind the noble Lord that we are at the Report stage.

Lord Kingsland: My Lords, perhaps I may say with enormous respect to the noble Lord the Government Chief Whip that I was very brief in my opening remarks. I simply want to say that one of the consequences of House of Lords reform is that very few active magistrates are left in your Lordships' House.

Lord McNally: My Lords, we are approaching the hour that I warned the noble Lord about some 12 hours ago.

Lord Rooker: My Lords, I want to support the magistrates because I have good friends who are magistrates. Further, I want to make the point that this is not a cheap exercise, for the reason that I shall give. Since 1991, in the drugs-related cash scheme, for which proceedings are always held in magistrates' courts, we have seen no evidence of any problems. No such problems have been adduced in the Chamber tonight. Indeed, last year some #4.5 million worth of drug-related cash was forfeited via the magistrates' courts. That is not a cheap point; #4.5 million worth of positive credit has been achieved by the work going on in the magistrates' courts.
	The new provisions should assist the magistrates in determining whether cash sums represent the proceeds of terrorism. Previously magistrates would have needed to work that out for themselves. These matters are suitable for magistrates' courts because the issues at stake are generally straightforward. We think that moving the scheme to the High Court would undermine it. Further, as I said on the last occasion, it would increase the expense of running the scheme and might cause problems as regards meeting the 48-hour deadline for the first hearing.
	I am sorry to be so negative in response to the noble Lord on this matter. However, the issues are the same and thus the reply must be the same.

Lord Kingsland: My Lords, I confirm the Minister's description of what he has said as Xnegative". I should like to say to noble Lords that I am a great supporter of the lay magistracy. Indeed, earlier this week I spent a considerable time supporting magistrates in a debate. Nevertheless, I believe that the complex financial issues that will be raised by the necessity to trace and subrogate will require a Chancery judge. If the Bill has a long life, the Government will need to reconsider the use of magistrates for this purpose. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 38 not moved.]
	Schedule 1 [Forfeiture of terrorist cash]:

Lord Kingsland: moved Amendment No. 39:
	Page 75, line 11, at end insert Xwhether legal tender or not"

Lord Kingsland: My Lords, Amendment No. 39 again raises issues connected with banknotes that are not regarded as legal tender, including counterfeit currency and, in particular, the question as to whether they come within the ambit of the Bill in relation to forfeiture, seizure and the detention of terrorist cash. The noble and learned Lord promised to return to these matters on Report.
	I know that the noble Lord, Lord Williamson of Horton, is anxious to hear about the problems connected with German currency and that the noble Earl, Lord Mar and Kellie, wishes to address the matter of Scottish banknotes. I should also like to know whether the Minister has thought again about the wisdom of relying on the existing criminal law to deal with counterfeit money—does it really enjoy such expeditious and complete measures of control as the Government are proposing in the Bill?
	As far Amendment No. 47 is concerned, I was puzzled by the Minister's response to this amendment at Committee stage. The amendment seeks to ensure that the civil procedure to forfeit cash cannot take place until,
	Xcriminal proceedings have been concluded".
	We are of the view that an application for civil forfeiture should be made only after a determination in the related criminal proceedings. We do not believe that forfeiture without compensation is an appropriate remedy for someone who has acquired a sum of money innocently, and for consideration, even though that money had its origins in a terrorist act.
	Amendment No. 52 concerns exceptional loss. It inquires about the circumstances in which it would be appropriate for a court to award compensation. In our view, if under paragraph 10(4) of Schedule 1,
	Xthe applicant has suffered loss as a result of the detention of the cash",
	and the court is satisfied that it would be reasonable to award compensation, then compensation should be awarded.
	The Minister said, by contrast, that the Bill was correct in stipulating that the circumstances should be exceptional. I was concerned by the way in which the Minister justified this provision. He said that authorised officers may be fearful of making seizure orders because they might be responsible for large pay-outs. As I said in Committee, I cannot accept that public officials would be influenced to behave in that way. I beg to move.

The Earl of Mar and Kellie: My Lords, I should like to add one or two comments in regard to Amendment No. 39, which has been prefaced as the XScottish banknotes amendment". I remind the House that not only do banks in Scotland issue notes, but so do banks in Northern Ireland, in the bailiwicks of Guernsey and Jersey and in the Isle of Man. It would be sensible to clarify this issue now and avoid future arguments about the legitimacy of these currencies. They are acceptable tender but they are not legal tender, and it would be wrong for anyone to get the impression that they were safe homes for terrorist cash. The Minister promised to go away and think about the matter. I look forward to hearing what his thoughts came to.

Lord Rooker: My Lords, I am grateful for the opportunity to come back to these amendments. My answers in regard to Amendment No. 39 may sound the same, but they are a result of the consideration given—even in the time available—to some of the issues raised. This gives us an opportunity to have another think about the drafting of the Bill.
	Amendment No. 39 takes into consideration the possibility of an authorised officer coming across counterfeit cash. The key objective is to take terrorist cash which is legal tender out of circulation. If the cash is not legal tender, there are other powers to deal with it. It probably is not much use to a terrorist anyway, so no particular purpose will be achieved by the amendment. If the cash was known to be counterfeit, it would be liable to seizure under the normal criminal law for the appropriate offence, whatever it may be.
	Where the cash was not known to be counterfeit, it might be seized unwittingly in accordance with the Schedule 1 scheme, but, once it was discovered to be counterfeit, it would revert to being dealt with by other powers. We do not believe that there is any need for the cash seizure scheme to cover cash which is not legal tender because powers already exist to deal with such cash and to remove it from circulation. Scottish banknotes could be seized like any other currency and are covered by the definition of Xcash" in paragraph (a).
	The issue was raised of the European currencies that are soon to be redundant. The definition catches notes and coins if they have value as a current medium of exchange. It follows that at a certain point currencies converting to the euro will lose their value and will become collector's items only—one has only to go to the Travel Office in the Commons and look at the box in which coins are collected for charity. As collector's items only, they will not be seizable. The issue, therefore, is about alerting authorised officers to the dates on which the currencies lose their value. The dates are not all the same, which complicates matters. That is the only issue at stake—namely, the point at which the cash ceases to be legal tender. After that, it is not much use either to ourselves or to the terrorists.
	Amendment No. 47 seeks to link the seizure of terrorist cash with criminal proceedings. The key point to remember is that this is a procedure for the forfeiture of terrorist cash which stands alone from the criminal proceedings. It is quite separate from the main thrust. It is about forfeiture only.
	We are aware of the arguments advanced in Committee about linking seizure to Clause 1(1), setting out the circumstances under which the cash may be seized. But we do not see why this should mean that the procedures themselves should await the outcome of the criminal proceedings. The procedure for the seizure of cash stands on its own. We believe that that is by far the best way to operate it.
	As regards Amendment No. 52, I note what noble Lords have said. Examples were given in Committee. Those whose cash is detained but not ultimately made the subject of forfeiture will already have been paid interest, because the cash will have been put in an interest-bearing account after a few hours. If their cash has not been put in an interest-bearing account, the person may be paid compensation in lieu of interest in accordance with the relevant paragraph in the schedule.
	The amendment is concerned with the circumstances in which the additional compensation may be paid. We believe that it should be paid where the circumstances are Xexceptional". In Committee, I gave the example of a business deal that could not be concluded, although the precise circumstances would be for the courts to determine.
	I also indicated in Committee and prompted debate on the fact that a lower test for compensation may result in authorised officers being deterred from making seizures for fear of being responsible for large pay-outs. That is not an attack on public officials, nor does it seek to undermine them in their work. I suspect that police officers come across this kind of situation every day and have to decide whether to issue a caution. It depends on the circumstances.
	In circumstances where the test may result in a larger claim—where the circumstances are on the margin—the officer may decide that it is not worth the risk for that reason if the test is lower. That might be an unwelcome side-effect of the amendment. I cannot give examples as I do not know whether records are kept on this matter; namely, on the decisions of Customs and other officers making inquiries and investigations on whether to use their statutory powers. They are all governed by the legislation. Much of it gives authorised officers a degree of discretion as to how to proceed. The officer is the person on the front line.
	I cannot expand on the situation any more than I did in Committee. We have re-examined the issue, but we are satisfied that the provision in the Bill as drafted will operate efficiently.

Lord Kingsland: My Lords, I am deeply unsatisfied with the Minister's reply to all three amendments. I simply cannot understand why he is not delighted with Amendment No. 39 and with the expression,
	Xwhether legal tender or not".
	It would solve, most elegantly, all the problems about which noble Lords have expressed concern.
	It is clear that the provisions in the criminal law will not be as effective with respect to counterfeit money as they would be with the amendment that is proposed; and with great respect to the noble Lord, I do not think he answered the questions that were posed by the noble Lord, Lord Williamson, in Committee.
	As far as the other two amendments are concerned, both of them are about the same issue—and that is making sure that innocent parties who find themselves in possession of funds that are connected with terrorism are properly compensated. In my respectful submission to the Minister, his arguments give no comfort to such persons. In the circumstances, however, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 40 to 52 not moved.]

Lord Glentoran: moved Amendment No. 53:
	After Clause 3, insert the following new clause—
	XOVERSEAS FUNDING FOR TERRORIST-RELATED POLITICAL PARTIES
	(1) No funding shall be permissible from outside the United Kingdom for any political party or organisation which the Secretary of State reasonably believes to be, or to be closely connected with, a terrorist organisation, or any of whose members are also members of a terrorist organisation.
	(2) Section 70 of the Political Parties, Elections and Referendums Act 2000 (c. 41) (special provision for Northern Ireland parties) shall cease to have effect.
	(3) Any order in force which has been made by the Secretary of State under section 70(1) of the Political Parties, Elections and Referendums Act 2000 prior to the coming into force of this Act and which has the effect of—
	(a) extending in relation to a Northern Ireland party the categories of permissible donors specified in section 54(2) of the Political Parties, Elections and Referendums Act 2000 (permissible donors), or
	(b) disapplying, in relation to a Northern Ireland party, any specified provisions of Part IV of the Political Parties, Elections and Referendums Act 2000 (control of donations to registered parties and their members etc.),
	shall cease to have effect on the commencement of this Act."

Lord Glentoran: My Lords, I wish to speak to this amendment very briefly. I realise that the House is very short of time. Hence I will be brief. We on these benches have stood unequivocally behind the Prime Minister in the weeks since September 11th in his fight against terrorism, and we continue to do so. We also agree with him that one of the key weapons in the fight against terrorism is to choke off the international flow of funds to organisations which are terrorist organisations or which support such terrorist organisations.
	Once more the House voted last week to remove from the Bill the artificial distinction between two types of terrorism, which we welcome. As the House well knows, terrorist organisations like the Real IRA and the Provisional IRA are closely linked to overseas terrorist organisations.
	These amendments aim to end the exemption under the political parties Act and render impermissible any funding from outside the UK to terrorist or terrorist-related organisations. Surely the logic of this must be absolutely clear: that is the right course of action. There is no normality if Sinn Fein and Northern Ireland parties alone of all those in the United Kingdom are allowed to receive foreign funds.
	As time is short, I make this statement. The arguments are very well understood. I sincerely hope that the Government will not reject this amendment. As I am sure that noble Lords on the Government Benches will know, I am pretty passionate about it and I believe, and those of us who take an interest in Northern Ireland believe, that this is a right, sensible and, in fact, the only road to go unless we are to follow the Mandelson road. I beg to move.

Lord Rooker: My Lords, I shall be brief. I hope that the noble Lord, Lord Glentoran, does not criticise me for this but, to be honest, this Bill is not a suitable vehicle for changing our electoral law. That is the reality. We have been criticised throughout for what—

Lord Glentoran: My Lords, I am sorry to interrupt but it is nothing to do with electoral law. It is to do with political parties' funding.

Lord Rooker: My Lords, that is electoral law. It has got to be. Sometimes I have had a hard time in the last six days making the connection between crime, the funding of crime, the funding of terrorism and linking them all together. I cannot do it. I cannot link electoral law and electoral practices in the funding of political parties to this Bill. That just does not fit in this Bill. I have got nothing else to say about it.

Lord Glentoran: My Lords, I am sorry to hear the Minister's response and I apologise if I was a bit abrupt in my hurry to get the deal done. I beg leave to withdraw this amendment and reserve the right to bring it back at Third Reading.

Amendment, by leave, withdrawn.
	Schedule 2 [Terrorist property: amendments]:

Lord Kingsland: moved Amendment No. 54:
	Page 85, line 19, after Xthat" insert Xeach of the requirements for the making of the order is fulfilled"

Lord Kingsland: My Lords, I shall speak also to Amendments Nos. 60, 62 and 64 in this group, which reflect my greatest concerns.
	Amendment No. 60 deals with the matters that must be satisfied before a judge can make an account monitoring order. As I said in Committee, we believe that the judge should be satisfied not only that there are reasonable grounds for suspecting that the person specified in the application has committed a terrorist offence, but also that there are reasonable grounds for believing that the accounts information will be of substantial value to the investigators. The Minister replied that the grounds would not be unreasonable. In those circumstances, what possible objection could there be to accepting the amendment?
	On Amendment No. 62, in Committee the Minister was reassuring on the appropriate level of protection for legal professional privilege. However, if I recall correctly, I asked him to reflect before Report on whether he felt that the Bill's silence on the point was sufficient protection in the context of the legislation, when many other rights normally accorded to litigants were being suspended or abandoned.
	Amendment No. 64 concerns the offence of failing to disclose information relating to certain criminal activities under the Act. It would impose a duty on a person to disclose information that led him to suspect that another individual had committed a terrorist offence. We are perfectly content with the new offence; but, again, as I said in Committee, we see no point in imposing a duty to disclose certain information if it is already in the public domain. Moreover, I question whether the circumstances are appropriate for reversing the burden of proof. I beg to move.

Lord Rooker: My Lords, I shall do my best to separate out the amendments that the noble Lord has referred to specifically, because I do not want to digress. I hope that I get the information right on Amendment No. 60—if I do not, I shall take advice—because it is mixed up in my notes on the whole group.
	Amendment No. 60 takes the wording from the production orders in paragraph 6 of Schedule 5 to the Terrorism Act 2000. It would introduce a higher threshold in that the account information must be likely to be of substantial value to the investigation. The difference in the threshold is justified on two bases. First, account monitoring orders are more closely connected with the financial orders, the provision for which is in the model for the requirements in the Bill. We think that it is right that the two orders should be available on a similar basis. Secondly, an account monitoring order will necessarily be more speculative than a production order. The aim of an account monitoring order is to find evidence of a transaction that has not yet happened, whereas a production order is focused on material that already exists or will soon exist. Therefore it is possible to be more specific about the value of the investigation material sought by way of a production order. We see great value to the police, the courts and financial institutions in framing the two powers in similar terms.
	The difference between the Government's approach and that adopted by the noble Lord is essentially twofold. First, the court would not be able to make an order unless it was satisfied that there were reasonable grounds for suspecting the person specified of a terrorist offence. Secondly, the police would have to demonstrate that the information to be obtained would be of substantial value to the terrorist.
	In the first case, there is an assumption that the person specified will be suspected of an offence. That may be true in the majority of cases, but it will not necessarily be so. The police may wish to obtain information relating to transactions on an account when the account holder—that is, the person specified—may well be innocent and may be being used by others. The amendment would preclude the use of the order in such cases. Even in those cases where the person specified is the suspect, the requirement to have reasonable grounds would preclude the use of this investigatory tool at an early stage in the investigation when it might not be possible at that point to establish such reasonable grounds.
	Regarding the other two amendments which we debated in Committee, I had hoped that I had offered comfort to people who thought they might be in such a position. The amendments seek to provide that a person does not commit an offence by failing to disclose information which is already in the public domain. The Bill already provides that a person does not commit the offence if he has a reasonable excuse for failing to disclose. As I indicated in Committee, that would be capable of covering the case where a person believed the information to be so widely known it did not need to be passed to the police. The provision provides a way to assess whether that person would be relieved from his criminal liability; that is, was it reasonable of him to act as he did? That is the proper way to deal with what the amendment refers to as information Xin the public domain".
	The noble Lord talked in Committee about the reverse burden of proof and discussed the normal circumstances in which the courts are prepared to tolerate reverse burdens of proof. For the reasons stated, we do not believe that that argument is valid. There is a good defence set out in the legislation for people who genuinely believe that the relevant information is in the public domain. It would be very easy to make that defence in whatever circumstances anyone can think of. If someone is accused of withholding information, and he or she says they believed it to be in the public domain, they will be able to point to it, whether it is in the form of a transcript, press cutting, media monitoring or whatever. They will have evidence that it is in the public domain. Therefore, there will be a perfectly honourable defence to put before the courts in those circumstances.

Lord Kingsland: My Lords, I thank the Minister for his reply. I draw some comfort from the last point that he made. As to his response to the first amendment to which I referred, I shall look at it carefully and see whether it might be appropriate to bring it back at Third Reading. In the meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 55 to 64 not moved.]

Lord Kingsland: moved Amendment No. 65:
	Page 91, line 8, at end insert—
	X(13A) If the first and second conditions are satisfied and the person concerned discloses the information or other matter in satisfaction of the third condition, that person shall not disclose that he has done so to the person whom he knows or suspects or has reasonable grounds for knowing or suspecting that he has committed an offence under any of sections 15 to 18.
	(13B) If a person discloses information or other matter in satisfaction of the third condition and does not inform the person whom he knows or suspects or has reasonable grounds for knowing or suspecting that he has committed an offence under any of sections 15 to 18 that he has done so, it shall be a defence in any civil or criminal proceedings that the person disclosing the information or other matter did not inform such other person that he had done so in order to comply with the restriction in subsection (13A)."

Lord Kingsland: My Lords, this amendment seeks to ensure that a person who suspects another of committing an offence does not Xtip off" that other person—to use the Minister's words in Committee—about the fact that the police have also been informed. The Minister believes that the answer to that lies in Section 18 of the Terrorism Act, which provides that it is an offence for a person to enter into, or become concerned in, an arrangement which facilitates the retention or control by another of terrorist property. In my submission, this is incorrect. Section 18 simply is not wide enough to encompass the circumstances to which I refer in the amendment. I beg to move.

Lord Rooker: My Lords, as I hope that I said in Committee, the amendment tabled by the noble Lord and the noble Baroness has a sensible aim. It seeks to ensure that a person who knows or suspects another of committing an offence does not Xtip off" the other person about the fact that the police have been informed. The amendment provides protection to the person disclosing information to the police should civil or criminal proceedings be brought against him for doing so.
	The first aim is already covered. As the noble Lord indicated that I said in Committee, it is covered by Section 18 of the Terrorism Act 2000 which provides that it is an offence for a person to enter into or become concerned in an arrangement which facilitates the retention or control by another of terrorist property. We genuinely believe that that meets the concerns behind the noble Lord's amendment.
	The second aim is already provided for in new Section 21B, where a person discloses information to the police. The second part of the amendment is therefore unnecessary. In the light of that, I hope that the noble Lord will not press his amendment.

Lord Kingsland: My Lords, I am most grateful to the noble Lord for that response. I shall reflect on what he said. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 4 [Power to make order]:

Lord Kingsland: moved Amendment No. 66:
	Page 3, line 8, leave out XUnited Kingdom's economy (or part of it)" and insert Xeconomy (or part of the economy) of the United Kingdom or a country or territory outside the United Kingdom".

Lord Kingsland: My Lords, in moving Amendment No. 66 I wish to speak also to Amendment No. 67. The argument here has already been made in Committee and, I am sure, is fresh in the Minister's memory. Why should this power be limited to protect the United Kingdom economy and United Kingdom nationals and residents? What about funds in the United Kingdom that are free for use in terrorist attacks aimed at the United States economy or United States residents? As I said in Committee, global terrorism needs to be tackled globally. We all know that the United States is the prime target for Al'Qaeda. Therefore, why cannot the Government take powers to freeze funds that are designed for terrorist use outside the United Kingdom?
	So far as concerns Amendment No. 67—this amendment is similar to the one tabled by the noble Lord, Lord Goodhart, in Committee—we believe that the power to make an order must be constrained in some way, or, at least, to a greater extent than it is in the current draft of the Bill. As I said in Committee, it is not enough simply to show that the action about which a complaint is made will cause some damage to the United Kingdom economy. That is the purpose of the amendment. I beg to move.

Lord McIntosh of Haringey: My Lords, these are Xpushmi-pullyu" amendments. They push in one direction and pull in another. They merely cancel each other out. I hope that Amendment No. 66, which is concerned with widening the conditions for freezing orders to include threats to other countries, recognises the fact that there are strong powers to impose sanctions unilaterally. They are designed to protect our national interests but they are not appropriate measures to counter threats to other countries.
	The powers will be available where an attack aimed primarily at another state also affects the United Kingdom. That, of course, is the example of September 11th, which clearly affected both United Kingdom lives and the United Kingdom economy. Other powers are available to support states which face similar threats. We have continued to implement sanctions agreed by the United Nations or in the European Union. We have also laid an Order in Council to allow enforcement in the United Kingdom of forfeiture and restraint orders made in designated countries, to include the European Union and the G7 states. Therefore, the amendment seems to be unnecessary in the light of the international powers which are available.
	On the other hand, Amendment No. 67 limits the conditions only to unlawful or intentional actions against the United Kingdom economy. In that case, we do need a broad and flexible power if we are to respond effectively to ever-changing threats to our national interests. We appreciate that the conditions of Clause 4 might also be met in situations where we would not wish to act; for example, where a foreign firm was damaging United Kingdom industry through legitimate trading activity. But here, of course, the overriding obligations of European and international law, the provisions of the European Convention on Human Rights and the requirements for extensive scrutiny of any order will ensure that the powers are not abused.
	The proposed amendment would not contribute any additional safeguard and could hamper use of the power where it was entirely appropriate. The primary subjects of the freezing order would not be subject to UK law, begging the question against whose laws their actions would be judged unlawful. That is not resolved in the amendment.
	We might wish to make an order even where there was no intention of damaging the economy. It is arguable whether even the attacks on the World Trade Centre fell into that category. The built-in safeguards will be more reliable than such a subjective test. The Treasury must base its decisions on a reasonable belief that the conditions are met. Orders are to be made by affirmative resolution.
	Amendment No. 68 would widen the trigger to cover threats to persons rather than to the lives of UK nationals. We must ensure that the use of the powers is proportionate to their serious nature but the amendment would widen the power unacceptably. The current drafting will catch actions such as kidnapping or serious injury, where there would certainly be a threat to life even if the threat were not carried out. If we change the wording to cover less serious threats to persons, that would go beyond the purpose of the emergency measures. We would find ourselves dealing with much smaller offences—for which these draconian measures would not be appropriate. I hope that the amendments will not be pressed.

Lord Kingsland: My Lords, is the Minister saying that Amendment No. 66 is unnecessary because, in circumstances where there was an intention to damage the US economy, the Bill would fasten on the funds in any case?

Lord McIntosh of Haringey: My Lords, I am saying that we have other powers to support states that face similar threats. I gave the example of the sanctions agreed by the United Nations or the European Union and the powers we are getting to allow enforcement of forfeiture and restraint orders. We are not helpless in the face of threats to other states but powers under UK law should be confined to the United Kingdom.

Lord Kingsland: My Lords, I am surprised by that reply. After all, we are allies with the United States and have been close to them for the whole of the 20th century. Is it not government policy to take as stern a view of terrorist threats to the United States as to the United Kingdom? I accept entirely the Minister's observation that there are powers in other legislation.

Lord McIntosh of Haringey: My Lords, that is why we took the lead in implementing Article 5.

Lord Kingsland: My Lords, can those powers be effected as speedily—and are they as comprehensive as the powers in the Bill?

Lord McIntosh of Haringey: Yes, my Lords.

Lord Kingsland: My Lords, I shall take the Minister's word for that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 67 and 68 not moved.]
	Clause 5 [Contents of order]:

Lord Kingsland: moved Amendment No. 69:
	Page 3, line 36, at end insert Xin connection with the action referred to in section 4"

Lord Kingsland: My Lords, in the interests of the House, in concluding these proceedings by 11 o'clock, I shall address only Amendment No. 70. The Minister will recall that as being Amendment No. 42 in Committee and that in moving it, I spoke also to Amendments Nos. 43 and 44. The Minister replied:
	XWe all agree with the principle. Our view is that that is the effect of the current drafting read in accordance with the Interpretation Act 1978. However, we agree that the Bill should expressly provide that in making changes to freezing orders the Treasury must have a belief, as well as stating that it has a belief, that the relevant conditions are met, and that that belief should be reasonable. We shall table amendments on Report to meet that point".—[Official Report, 28/11/01; col. 358.]
	I thought at that stage that the Minister was referring to Amendment No. 42—now Amendment No. 70—as well as to the other two amendments. However, he made it clear later in Committee that that was not the case. I therefore return to Amendment No. 70. I ask the Minister, since I had not understood this in the context of his reply in Committee, why is he not prepared to accept the insertion of the word Xreasonable" in the circumstances to which the amendment would give rise? I beg to move.

Lord McIntosh of Haringey: My Lords, the noble Lord, Lord Kingsland, is of course quite right to say that I gave an undertaking to introduce amendments on Report. They are Amendments Nos. 74 to 77. I then woke up a little late to the fact that we did not agree with Amendment No. 42, as it then was, and I dissociated myself from that amendment.
	I spent many happy hours in opposition trying to insert the word Xreasonably" into legislation, and I have spent many happy hours in government trying to resist its insertion into legislation. In either capacity, I have never really understood the basis on which parliamentary counsel sometimes thinks that it is reasonable to include Xreasonable" and sometimes thinks that it is not. But I do my best.

Lord Carter: My Lords, which side is my noble friend on?

Lord McIntosh of Haringey: My Lords, I am against the amendment.
	Paragraph 6 of Schedule 3 provides for a freezing order to require specified people, engaged in business in the regulated sector, to disclose any dealings with the subjects of the order. Disclosures are to be made to the Treasury as soon as is practicable. It is debatable whether the proposed amendment adds anything to the sense of the provision. We consider that Xpracticable" involves a clear test and we should oppose any further qualification. This is an occasion on which I understand what parliamentary counsel is doing.
	The obligation can cover banks and other financial institutions engaging in activities that are already regulated in respect of money laundering. Disclosures can provide essential information for terrorist investigation. We consider the requirements laid on them in the schedule to be entirely consistent with the standards of due diligence that are expected of the regulated sector.

Lord McNally: My Lords, although I understand the way in which the noble Lord, Lord Kingsland, is sprinkling qualifications through the Bill, does the Minister agree that a change of attitude on the part of the regulated is needed? It is clear that our financial services industries have been used—often unknowingly—as part of the terrorist network. There has to be an end to what the police call wilful ignorance in handling these matters, and there has to be a change of psychology through the industries so that they are not used by terrorists in that way.

Lord McIntosh of Haringey: My Lords, I rather suspect that the amendments for which the noble Lord, Lord McNally, voted, and which were agreed to earlier this afternoon, give the lie to what he has just said. I rather suspect that by undesirably and damagingly limiting various parts of the Bill to explicit terrorist activities rather than to crimes that may assist terrorist activity, he has damaged the case that he is now reasonably making. The minor point that I am making on this minor amendment—I do not think that the noble Lord, Lord Kingsland, will be offended by that description—is that Xpracticable" is a perfectly good word and does not need to be qualified by the word Xreasonable".

Lord McNally: My Lords, I should have known better than to proffer an olive branch to the Minister at a quarter to eleven; I should have known that he would hit me over the head with it!

Lord Kingsland: My Lords, bearing in mind the doctrine of Pepper v. Hart, if the Minister does not think that Xreasonably" adds anything to Xpracticable" I am content to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Schedule 3 [Freezing orders]:
	[Amendment No. 70 not moved.]
	Clause 7 [Review of order]:

Lord Kingsland: moved Amendment No. 71:
	Page 4, line 5, at end insert Xand must revoke such freezing order if it ceases to have reasonable grounds to consider that the conditions set out in section 4 are fulfilled"

Lord Kingsland: My Lords, as the Minister knows there appears to be no protection in the Bill as drafted against the Treasury letting a freezing order run for the full two years even if the reasons for it have fallen away. Amendment No. 71 requires the Treasury to lift the order when the conditions are no longer fulfilled. Therefore the victim of the order has some legal recourse if the Treasury fails to act.
	The Minister responded in Committee but was not prepared to accept the amendment. I said:
	XIf the Treasury ceases to have reasonable grounds, in those circumstances, it is hard to imagine any conclusion that the Treasury could reach other than revocation. Perhaps the noble Lord would like to reflect further on this clause before he returns to your Lordships' House at Report stage".
	The Minister replied,
	XI am glad to do that. I always reflect on these matters".—[Official Report, 28/11/01; col. 362.]
	I beg to move.

Lord McIntosh of Haringey: My Lords, what I did not say is that I tend to reflect at four o'clock in the morning when I suffer particularly from insomnia. It is not very productive and it has not been very productive on this occasion.
	Amendment No. 71 provides that the Treasury must revoke an order when the conditions are no longer met. As drafted, the Bill includes a provision stating that the Treasury must keep a freezing order under review. This is a meaningful commitment. As I said in Committee, where there is no longer a need for a freezing order the Treasury will revoke it. Ongoing review will also provide a basis for amending an order where that is appropriate. But an obligation to revoke an order when the conditions in Clause 4 were no longer met could seriously reduce the effectiveness of the power. We can imagine situations where the original reasons for freezing funds no longer apply but there are other good grounds, which have arisen since the original order, for the order to remain in force.
	For example, an overseas terrorist who was the subject of a freezing order might move to the United Kingdom. A freezing order cannot be made in respect of a UK terrorist. While often it would be appropriate to revoke the freezing order and use the UK criminal law to target that person, revocation of the order should not be an obligation.
	However, we appreciate that this is a serious power. Freezing orders should not be permitted to stay on the statute book indefinitely. That is why we have taken the unusual step of providing for ongoing review by the Treasury with a freezing order lapsing automatically after two years. The order will also be open to judicial review on an ongoing basis. It is not right to say, as did the noble Lord, Lord Kingsland, that the victim has no legal redress.
	Amendment No. 72 provides that the Treasury may renew an order. Again, we accept in principle that it may be appropriate to renew an order after the maximum period of two years is complete. Of course it must. But we would wish such a renewal to be subject to the same standards of parliamentary scrutiny as the original making of the order. There is nothing to prevent the Treasury replacing a freezing order under the current drafting. Amendment No. 72 is not only unnecessary; it would weaken parliamentary scrutiny.
	Amendment No. 73—the noble Lord, Lord Kingsland, did not speak to it—is about publication in the Gazette. There is no benefit in requiring orders in the Gazette. That would be a very unusual step. That is not the normal procedure with secondary legislation.
	Under the Statutory Instruments Act 1946, all statutory instruments are sent immediately after being made to the Queen's Printer of Acts of Parliament to be printed and sold as soon as possible. As an operational matter—I made this point in debate in Committee—financial institutions are notified of the order and the requirement to freeze funds by a circular from the Bank of England. Surely, that is better than placing it in the Gazette, which is read only for very specific purposes.

Lord Kingsland: My Lords, I thank the Minister for his reply. I have not spoken to a number of amendments, as I said earlier, because of the time constraint. The wisdom of my approach is borne out by the clock.
	I have one reflection on Amendment No. 71. Would the Minister agree that if the Treasury ceases to have reasonable grounds to continue to freeze funds, it is hard to imagine any conclusion that the Treasury could reach other than revocation?

Lord McIntosh of Haringey: My Lords, that could well be true, but that is not the point. The amendment imposes an obligation to revoke an order. As I understand the question, if the original reasons for freezing the funds no longer apply, we would have to revoke. I do not agree with that because there may be other good grounds which did not exist at the outset for an order to stay in force.

Lord Kingsland: My Lords, that is a most interesting response to my further question. My understanding of my amendment is that it would cover any grounds and not just the original grounds.

Lord McIntosh of Haringey: My Lords, we are in danger of getting into a Committee discussion and I should not do that. The amendment states,
	Xif it ceases to have reasonable grounds".

Lord Kingsland: My Lords, I would say,
	Xceases to have any reasonable grounds".
	But we are on Report. I thank the Minister for his reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 8 [Duration of order]:
	[Amendment No. 72 not moved.]
	[Amendment No. 73 not moved.]
	Clause 11 [Procedure for making certain amending orders]:

Lord McIntosh of Haringey: moved Amendment No. 74:
	Page 5, line 24, leave out Xfurther order states that the Treasury" and insert XTreasury reasonably".

Lord McIntosh of Haringey: My Lords, in moving this amendment I shall speak also to Amendments Nos. 75, 76 and 77. It has been made clear in debates on previous amendments that we tabled these amendments in response to the proposals made at the Committee stage that the Treasury should be required to have a reasonable belief that the relevant conditions are met when amending a freezing order as well as when making it. I said that we agreed to that in principle and that is provided for in these four amendments. I beg to move.

On Question, amendment agreed to.

Lord McIntosh of Haringey: moved Amendments Nos. 75 to 77:
	Page 5, line 26, at end insert Xand the further order contains a statement of the Treasury's belief"
	Page 5, line 34, leave out Xfurther order states that the Treasury" and insert XTreasury reasonably"
	Page 5, line 36, at end insert Xand the further order contains a statement of the Treasury's belief".
	On Question, amendments agreed to.

Lord McIntosh of Haringey: My Lords, I beg to move that consideration on Report be now adjourned.

Moved accordingly and, on Question, Motion agreed to.
	House adjourned at six minutes before eleven o'clock.